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Lawsuit Filed Over Endangered Seabird Deaths Near Airports, Harbors

August 23, 2017, 12:31 PM HST · Updated August 23, 3:35 PM
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Conservation groups today filed a lawsuit against the Hawai‘i Department of Transportation for allegedly failing to address injuries and deaths of three species of critically imperiled seabirds.  The lawsuit claims the deaths and injuries are the result of by bright lighting at state-operated airports and harbors on Kaua‘i, Maui and Lāna‘i.

Hawaiian petrel chick in its old burrow on the mountain. Photo credit: Andre Raine/Kaua’i Endangered Seabird Recovery Project.

The Newell’s shearwater is a threatened species and Hawaiian petrels and band-rumped storm petrels in Hawai‘i are endangered species.

The lawsuit filed by Hui Ho‘omalu i Ka ‘Āina, Conservation Council for Hawai‘i and the Center for Biological Diversity alleges that the transportation department has failed to protect these native seabirds from harmful operations at its facilities, violating the federal Endangered Species Ac.  The groups are represented by nonprofit law firm Earthjustice.

The seabirds are attracted to bright lights, like those at the department’s airport and harbor facilities. Earthjustice asserts that those facilities are among the largest documented sources in the state of injury and death to the birds.  Seabirds are known to become disoriented and circle bright lights until they fall to the ground from exhaustion or crash into nearby buildings.

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On Kaua‘i, which is home to most of the threatened Newell’s shearwaters remaining on the planet, Earthjustice claims bright lights have “contributed significantly” to the catastrophic 94% decline in the Newell’s shearwater population since the 1990s. At the same time, Hawaiian petrel numbers on Kaua‘i have plummeted by 78%.  “Remnant breeding populations of the imperiled seabirds cling to survival on Maui and Lāna‘i,” the complaint states.

The state Department of Transportation responded to the lawsuit this afternoon with the following statement:

The Hawaiʻi Department of Transportation is tasked with the essential role of ensuring safe transportation facilities for the citizens of Hawaii as well as the millions of visitors to the Islands each year. HDOT also plays another critical role – that of a trustee of the State’s environmental resources which requires it to conserve and maintain natural resources for the benefit of all the citizens of the State. HDOT takes both of these responsibilities extremely seriously and always seeks to identify ways to improve management of its facilities for the benefit of natural resources while maintaining safe operations.

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In the past several years, HDOT has proactively evaluated ways that its facilities can be operated in a manner that is most protective of all of the Islands’ sensitive resources, including threatened and endangered seabirds and other species. For example, HDOT recently expended hundreds of millions of dollars to install energy efficient lighting improvements at the State airports and commercial harbors to avoid impacts to sensitive species on the Islands as well as millions of dollars to safely translocate the endangered Nēnē away from airport facilities. HDOT has been and continues to be actively engaged with the US Fish and Wildlife Service, the agency charged with overseeing implementation of the federal Endangered Species Act, to ensure that the facilities are operated in ways that are consistent with federal laws and policies. HDOT has also been open to meeting with environmental groups and other interested parties to explore effective ways of further benefiting listed and sensitive species.

Given its steadfast commitment to protecting Hawaiʻi’s listed species, HDOT was disappointed to learn today that Earthjustice filed a lawsuit alleging that state-operated airports and harbors on Kauaʻi, Maui and Lānaʻi have resulted in unauthorized take of federally listed seabirds. HDOT will vigorously defend the State’s interest in this suit. While HDOT cannot comment on the specific allegations in an active lawsuit, it does want to reaffirm its commitment to operate its facilities in manners which are protective of all sensitive species and are consistent with legal requirements.

“Our ancestors depended on the ‘a‘o (Newell’s shearwater), ‘ua‘u (Hawaiian petrel) and ‘akē‘akē (band-rumped storm-petrel) to help locate schools of fish, to navigate from island to island and to know when the weather is changing,” said Kaua‘i fisherman Jeff Chandler of Hui Ho‘omalu i Ka ‘Āina, which works to protect cultural and natural resources. “We filed this lawsuit because we’ve had enough of the Department of Transportation ignoring its kuleana (responsibility) to protect these culturally important creatures.”

“The tragic deaths of these endangered seabirds were preventable,” said Brian Segee, an attorney at the Center for Biological Diversity. “The Department of Transportation can’t keep ignoring the Endangered Species Act. The department needs to do right by these amazing birds and improve conditions on the ground to offset the real harm caused over the years by these very bright lights.”

According to plaintiffs, last October, the department broke off discussions with federal and state wildlife agencies regarding its participation in an island-wide habitat conservation plan to minimize and mitigate harm to the rare seabirds on Kaua‘i.

“It is incredibly saddening to know how endangered these seabirds have become,” said Marjorie Ziegler of Conservation Council for Hawai‘i. “They are integral parts of our island ecosystem and native Hawaiian culture. We hope this lawsuit will finally spur our government to take the necessary steps to protect them.”

The groups seek to “compel the department to comply with its obligations under the Endangered Species Act to minimize and mitigate harm to the imperiled seabirds by securing incidental take permit coverage of its activities on all three islands.” As required by the Act, on June 15, the citizen groups provided advance notice of their intent to sue.

“Our notice letter prodded the department back into talks over participating in the island-wide habitat conservation plan on Kaua‘i,” said David Henkin, an Earthjustice attorney representing the groups. “That’s a good start, but talk alone will do nothing to save these rare and important animals from extinction. It’s long past time for the department to take action, not only on Kaua‘i, but everywhere in the state that its operations illegally kill seabirds.”

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