Newell's Shearwater by Jim Denny, kauaibirds.com

(Washington, D.C., May 22, 2013) The Federal Government has warned the State of Hawai'i that it should either enter a plea agreement with the Department of Justice (DOJ) or face criminal prosecution, including possible jail time, in connection with the deaths of a large number of Wedge-tailed Shearwaters and other wildlife caused by the continued use of certain street lights that are attracting the wildlife and ultimately causing their deaths.

According to a January 2013 state government memo from Deputy Attorney General Laura Kim, on December 20, 2012, the DOJ notified the Hawaii Department of Transportation (DOT) of a multi-year investigation of DOT lights that are causing unlawful take (killing) of birds protected under the Migratory Bird Treaty Act (MBTA), as well as turtle and moth species protected under the Endangered Species Act (ESA). Although DOJ stated that the investigation is statewide, the priority is on Oahu where DOJ claims a considerable number of Wedge-tailed Shearwaters, which are protected by the MBTA, have been injured by DOT lights.

According to media reports in the Honolulu Civil Beat, since 2007, the DOT has required all new lighting projects to use full cutoff lens fixtures, which help reduce light pollution. These shielded lights protect certain seabirds that can become disoriented when flying, leading to their injury or death.

The state has installed roughly 1,800 of these lights along highways, Ala Moana Boulevard, and other roads. There are approximately 11,000 lights under DOT's jurisdiction, according to DOT spokeswoman Caroline Sluyter.

Violations of the MBTA can result in criminal penalties, including imprisonment and the imposition of substantial fines. In 2010, the DOJ successfully prosecuted the County of Kauaʻi Kauai and the Kauaʻi Island Utility Cooperative (KIUC) for violating the MBTA in connection with the deaths of 32 Newell's Shearwaters. The prosecutions resulted in plea agreements and both defendants being placed under federal probation.

That action was triggered in part by a March 2010 suit filed by Earthjustice on behalf of Hui Ho‘omalu I Ka 'Aina, Conservation Council for Hawai‘i, the Center for Biological Diversity and American Bird Conservancy. That lawsuit asked that KIUC comply with the ESA by lowering power lines in major flyways that are responsible for the bulk of shearwater deaths and by protecting nesting colonies from predators to offset unavoidable harm. Under pressure from the threat of litigation, the utility finally secured an ESA incidental take permit in May 2011 and is now implementing critical measures to protect these imperiled seabirds.

“To withstand the annual toll taken by KIUC's operations, the Newell's Shearwater population on Kaua‘i needs safe places to raise healthy chicks,” explained George Wallace of American Bird Conservancy. “That's why we fought so hard to make sure KIUC contributes its fair share to protect nesting colonies from non-native predators such as rats, cats, and barn owls.”

KIUC's ESA permit requires it to contribute nearly $400,000 per year to protect shearwater colonies on Kaua‘i's north shore.