HONOLULU (CN) - A Hawaii judge vacated on Friday an agency letter that allowed commercial fishing in a Pacific Ocean monument following a proclamation from President Donald Trump that walked back Obama-era environmental protections.
U.S. District Court Judge Micah Smith, a Joe Biden appointee, ruled that the letter - issued by the National Marine Fisheries Service - violated the Magnuson-Stevens Act and Administrative Procedure Act when it opened up protected water of the Pacific Islands Heritage Marine National Monument.
Environmentalists had claimed that the government didn't engage in any notification or comment process before issuing the letter on April 25, a week after Trump's proclamation.
"Whether plaintiffs are right to contend that they are entitled to participate in a notice and comment procedure - the government has chosen to concede that they are," Smith wrote, noting the government had chosen not to argue the letter is an interpretive rule instead of a legislative rule.
The Pacific Islands Heritage Marine National Monument encompasses a group of islands to the south and west of the Hawaiian Islands that are notable for their unique ecosystems and rare marine life. President George W. Bush created the monument in 2009, and President Barack Obama expanded it in 2014.
The plaintiffs - the Conservation Council for Hawaii and the Center for Biological Diversity, along with Kpa'a, an organization of Native Hawaiian cultural practitioners - had argued in a Tuesday hearing that continued commercial fishing in the area would be devastating for the delicate marine ecosystem of the islands and the surrounding reefs.
Commercial fishing in the monument was banned, until Trump said in his proclamation that "appropriately managed" commercial fishing in the expanded areas could be allowed. He directed the Secretary of Commerce to relax some of the regulations on the area. The Department of Commerce - under which the Fisheries Service operates - has not yet proposed any rules.
But Smith notes that not even Trump's April 17 proclamation specifically directed the Fisheries Service to immediately give the green light to commercial fishing permit holders. It was only after the letter was issued, not after the proclamation itself, that fishing began.
The letter claimed that "the existing regulations promulgated via notice and comment procedures were immediately eliminated by the proclamation itself, even though nothing in the proclamation's text supports that view, and even though the proclamation directed the agency to make proper use of notice and comment procedures to implement its directives," Smith wrote.
Smith also established that the letter constituted a final agency action subject to judicial review.
"Far from a routine correspondence, the letter creates a safe harbor for commercial fishing operations: it announces a firm agency commitment to non-enforcement (through the assertion that those regulations no longer exist) and thus carries significant legal consequences all on its own," he wrote.
The judge dismissed the government's argument that the letter was merely the beginning of their administrative process and was therefore not a final action.
"To hold that the agency's action is unreviewable because it failed to use formal procedures, at least in these circumstances, would be to allow the agency to elide judicial review by doing the opposite of what is alleged to have been required," Smith said.
Smith granted summary judgment to the environmentalists on their Magnuson Act and APA claims against the Secretary of Commerce, the administrator and assistant administrator of the National Oceanic and Atmospheric Administration.
But the plaintiffs' other claims, first filed in May, and brought under the Antiquities Act and the National Environmental Policy Act, among others, remain in play.
Representatives for the government or the environment did not immediately respond to a request for comment.
Source: Courthouse News Service
