Judge: NMFS can issue permit to Kona Blue

By

Steven Hedlund

Published on
April 30, 2012

A U.S. District Court judge in Honolulu will allow the U.S. government to grant Kona Blue Water Farms the first commercial open-ocean fish farm permit issued in U.S. waters.

The ruling came last week when Judge Susan Oki Mollway gave the National Marine Fisheries Service (NMFS) the go-ahead to issue a “fishing” permit to Kona Blue, effectively rejecting Food & Water Watch’s argument that the agency lacks the statutory authority under the Magnuson-Stevens Fishery Conservation and Management Act to issue such a permit because the activity qualifies as “aquaculture,” not “fishing.”

The Washington, D.C., environmental organization, which filed the lawsuit last August along with the Hawaiian-Environmental Alliance (KAHEA), also claimed that NMFS acted “arbitrarily and capriciously” in doing so, that NMFS failed to adequately assess the environmental impacts of Kona Blue’s fish farm, and that a regional fishery management plan is required to issue the one-year permit.

“The bottom line is that NMFS’ characterization of the KBWF project as “fishing” was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law,” said Mollway in her ruling. “The permit issued to KBWF did not create a rule that aquaculture is ‘fishing.’ The NMFS issued one permit authorizing a specific project to ‘stock, culture, and harvest’ almaco jack using the CuPod in a designated area. The permit does not expressly authorize ‘aquaculture.’”

A CuPod is a brass-link mesh cage that, instead of being tethered to the ocean floor, is continuously towed by a vessel, remaining submerged at a predetermined depth. Kona Blue raises Seriola rivoliana, a Hawaiian yellowtail relative, off the coast of Hawaii’s Big Island, and markets its fish as Kona Kampachi®. Kona Blue was founded in 2001 by Dr. Dale Sarver and Neil Sims, who is also president of the Ocean Stewards Institute, an open-ocean aquaculture advocacy group.

“We are very disappointed by the court’s decision, which seems to say that aquaculture facilities can be permitted in federal waters, even if not authorized by a regional fishery management council,” said F&WW Executive Director Wenonah Hauter. “We do not think this is what Congress contemplated when they enacted our nation’s fishing laws, and we are currently considering all of our legal options, including an appeal.

“Food & Water Watch feels strongly that NMFS should not have granted [Kona Blue] a permit at all,” she added. “NMFS’ determination that, when Congress used the word ‘harvesting’ in the 1976 law, its somehow contemplated allowing the raising of fish in futuristic floating industrial fish farming cages in the open ocean — as if it was traditional fishing — is completely without merit. Regardless, in this case, the governing regional fishery management council never even authorized the activities in the federal waters off of Hawaii, and a proper environmental impact study was never conducted.”

F&WW is a staunch opponent of open-ocean aquaculture, while KAHEA is a grassroots, community-based organization established to protect Hawaii’s sacred lands, native species and cultural traditions.

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