LIHUE — Lights at airports and other Hawaii Department of Transportation facilities on Kauai, Maui and Lanai might draw the state into an Endangered Species Act lawsuit.
The intent to sue was detailed in a June 15 letter from the environmental law firm Earthjustice because the bright lights at HDOT facilities allegedly are causing injuries and death to three species of endangered birds.
On Thursday afternoon, HDOT spokesman Timothy Sakahara said the department hadn’t received a formal notice of intent to sue, and declined to comment.
The letter was addressed to Gov. David Ige, HDOT Director Ford Fuchigami, and representatives of the U.S. Department of Interior and the U.S. Fish and Wildlife Service.
Earthjustice is informing of the intent to sue on behalf of Hui Ho’omalu i Ka’aina, Conservation Council for Hawaii, and the Center for Biological Diversity.
It affords HDOT 60 days to secure an incidental take permit and to implement a Habitat Conservation Plan that will minimize the death and injury of Newell’s shearwater, Hawaiian petrel and Band-rumped Storm-petrel birds.
If that doesn’t happen, Earthjustice will file an ESA violation complaint.
“Since ancient times, Hawaiian fishermen have looked to the ‘a’o (Newell’s shearwater) to help them find fish,” said Jeff Chandler, Kauai fisherman and member of Hui Ho’omalu i Ka’aina.
He continued: “They’re an important part of our culture, and the Department of Transportation needs to take seriously its kuleana (responsibility) to protect them.”
Section 9 of the Endangered Species Act prohibits the “take” of any listed species within the U.S. without a valid incidental take permit — and that term is broadly defined.
According to the ESA, “take” includes harming, harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting any listed species.
Kauai’s endangered seabirds fledge every year from September through December. During that time they’re especially vulnerable to what’s been dubbed “fallout” — when they are grounded, usually after attraction to light.
Since 1979, more than 32,000 grounded seabirds have been collected by Kauai’s Save our Shearwaters program on the island — and 75 percent of these birds have been Newell’s shearwaters, according to Kauai Endangered Seabird Recovery Project.
Kauai has some of the highest “fall-out” in the world, according to KESRP, and hundreds of newly fledged shearwaters and petrels are grounded annually.
And the lights at places like the Lihue Airport and Nawiliwili and Port Allen Harbors allegedly bring down birds annually.
“Fix the lights so these magnificent seabirds on the brink of extinction aren’t killed is completely feasible,” said Brian Segee, an attorney at the Center for Biological Diversity.
HDOT pulled out of the creation of a Habitat Conservation Plan in October, after years of concern circled around Kauai regarding the rapid decline of the endangered bird species.
It’s an islandwide conservation plan, and in October, Maka’ala Kaaumoana told TGI it wouldn’t go forward without state involvement because the entity was intertwined with County of Kauai, KIUC and Princeville Resort in the creation of the plan.
“By withdrawing from talks on Kauai, the department left the County of Kauai and private entities holding the bag to address harm from the airports and harbors,” said Marjorie Ziegler of Conservation Council for Hawaii in a Thursday news release.
Earthjustice attorney David Henkin is representing the groups as they move forward with the intent to sue, seeking to persuade DOT to “comply with its obligations” under the ESA.
“Time is running out for these rare and culturally important seabirds,” Henkin said. “If the Hawaii Department of Transportation continues to shirk its obligations under the Endangered Species Act, we’ll see them in court.”