Legal arguments were made on August 5, 2025 at a hearing at the U.S. District Court for Hawai‘i in a lawsuit filed in May by Earthjustice on behalf of Kāpa‘a, Conservation Council for Hawai‘i, and the Center for Biological Diversity— opposing an April proclamation by President Trump that permitted U.S. commercial fishing within the Pacific Islands Heritage Marine National Monument.
Judge Micah W.J. Smith heard Earthjustice’s motion, argued by attorney David Henkin, which focuses on a letter sent out broadly by NMFS to the commercial fishing industry declaring that the waters 50 to 200 nautical miles around Johnston, Jarvis, and Wake are now open to commercial fishing. Three days later, U.S.-flagged longliners based out of Honolulu started fishing in the protected monument expansion waters around Johnston Atoll.
Earthjustice filed a motion for summary judgment requesting that the court declare that it was unlawful for NMFS to revise the National Monument’s fishing regulations without notice and comment procedures. In plain terms, NMFS can’t ignore existing regulations, giving commercial fishers a blanket green light to start fishing in protected waters. The agency is required to provide an opportunity for public comment hearings about any proposed changes to fisheries management in the protected area.
Earthjustice asked the judge to “vacate” the letter from NMFS, forcing the agency to follow the lawful process to change the existing regulations, which would require commercial fishers to stop dropping their hooks into protected waters or face legal penalties.
The opposing counsel, represented by DOJ attorney Sara Warren, argued that the President’s proclamation to open the area to commercial fishing wiped out the existing regulation in its entirety, meaning that no formal rulemaking process is now needed. And, that the NMFS letter was merely an “interpretation” or “opinion” that they could start fishing because of the President’s proclamation.
Judge Smith questioned Warren on the basis of Trump repealing a NMFS prohibition on commercial fishing in the monument. But Warren continued to restate her position–and not the validity of the governmentʻs view. Judge Smith said at one point: “Can you cite me a single case from a single court that has ever held that the president can simply, by stroke of the pen, erase formal regulations that have been promulgated through notice and comment procedures?” Warren responded that the issue doesnʻt arise very often. To which, Judge Smith questioned whether the issue does not arise often if presidents have the ability to exercise such power.
Judge Smith closed the hearing by sharing his intent to make a decision “expeditiously.”
Longliners drop a wall of hooks that create bycatch, which can kill and injure endangered and threatened species in the protected Monument waters, including sharks, whales, turtles, and birds. Based on recent Global Fishing Watch data, the Hawaiʻi-based longliners are not only fishing in the waters around Johnston Atoll, they’ve started fishing in the protected waters around Jarvis Island.
As a result of our coalition’s successful effort in 2014 to expand protections for the monument, resulting in President Obama’s historic action to create one of the largest marine refuges on the planet, commercial fishing has been kept out of the area for more than a decade. Now, industrial fishing interests have found their way back into the monument—exploiting one of the last wild, thriving ocean ecosystems on the planet.
We applaud Earthjustice and its clients in their pursuit to hold the agency accountable to existing federal laws–and to keep the commercial fishing industry out of these special, sacred waters.
Join us in standing firm against industrial fishing interests that prioritize short-term profits over the long-term health of our ocean and the well-being of our communities.
Sign the petition to tell President Trump, the US Department of the Interior Secretary Burgum, and US Commerce Secretary Lutnick that the Pacific Islands Heritage Marine National Monument must remain protected.