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September 10, 10

NEWS / Hawaiian County Agrees to Pay Restitution and Modify Operations to Resolve Endangered Species Act &

HONOLULU – The county of Kauai, Hawaii, has entered into a plea agreement to resolve alleged violations of the Endangered Species Act (ESA) and Migratory Bird Treaty Act (MBTA), the Justice Department announced today. The county today entered a plea of guilty to violating the MBTA by taking, that is killing or wounding, more than 18 migratory birds, specifically Newell’s shearwaters (known in the Hawaiian language as ‘a’o).

According to the court documents, the Newell’s shearwater (Puffinus auricularis newelli) is a seabird native to the Hawaiian Islands. The majority of the world’s population of Newell’s shearwaters nest on the island of Kauai, specifically in burrows on inland mountains. Young shearwaters leave these inland mountain nests and make their first flight to the sea in September through December each year, typically at night. The young birds use mountain air currents or physical drop offs to become airborne. If a young shearwater falls to the ground in a location without conditions such as those that occur in the inland mountains or at sea, it usually will be unable to regain flight.

The Newell’s shearwater is a threatened species protected under the ESA, and a migratory bird protected under the MBTA. The species is identified as endangered on the International Union for Conservation of Nature red list.

According to the information, it has been publicly documented since at least 1979 that fledgling Newell’s shearwaters are attracted to bright lights which often causes them to circle the lights and fly more passes across any nearby obstacles. This attraction may cause the birds to fly into the light or other obstacles near the light and thereby become killed or injured, or to fly around the lights until they fall to the ground exhausted where the bird may be killed by a car, predator or starvation. On approximately Aug. 3, 2005 and Sept. 16, 2005, as well as on various other dates thereafter, the county was notified by the U.S. Fish and Wildlife Service that its facilities, particularly the lighting at its facilities, were taking protected seabirds, including threatened Newell’s shearwaters. The county was advised that these takings violate both the MBTA and the ESA. The county was informed that it could prepare and submit an Habitat Conservation Plan (HCP) to apply for a permit that would authorize certain takings incidental to the operation of its facilities, and was given advice over a number of years that it could minimize takings by, among other things, shielding its lights.

As of Aug. 30, 2010, the county of Kauai had not shielded any of its lights, prepared an HCP or applied for a permit authorizing takings of any protected seabirds. Only on Aug. 31, 2010, did the county apply to participate in an island-wide HCP plan currently being developed with regard to seabirds.

The information specifies that during each of the past five years some Newell’s shearwaters have been killed, or otherwise taken, by lighting at facilities operated by the county, including but not limited to, the taking of at least one protected Newell’s shearwater on each of the following dates: Oct. 14, 19 and 28, 2005; Oct. 18, 20 and 21, 2006; Oct. 18 and 19, 2007; and Oct. 23, 2009.

Under the terms of the plea, the parties recommend the maximum statutory fine of $15,000 for the single count charged, and a period of probation of 30 months with specific conditions of probation intended to avoid additional violations during the period of probation. One set of conditions relate specifically to the use of lights at the county’s football stadiums and a second set relate to lights at all other county facilities, each covering a period of three fallout seasons (that is, Sept. 15 to Dec. 15 of 2010-2012).

For the football facilities, for 2010 the county agrees that night football games will not be played for all but four specific games within the fallout seasons this year. For the four identified games, they may play them at night with certain lighting restrictions, to include shielding the lights and monitoring. In this first year if shielding is not accomplished, the games may still be played provided that the county creates an escrow fund of $60,000, from which $10,000 per killed or seriously injured bird would be transferred to an account for use to benefit seabirds on Kauai. However, once six takings are reached, any remaining games of the four cannot be played at night. Starting with the 2011 football season for any night games all lights must be shielded and a similar escrow account funded. Once four takings that involve the downing of birds are reached, any remaining games cannot be played at night.

For all other facilities, the lights must be inventoried and measures must be taken to minimize and monitor for takings, all on a specific schedule. As of 2011, if such facility lights are to be used at night during the fallout season (Sept. 15 until Dec. 15), an escrow account of $100,000 must be funded, with an option to add additional funds in increments. Again, transfers would be made related to any takings that occur, from the escrow account to one for use to benefit seabirds on Kauai. If and when the fund is exhausted lights at facilities with takings cannot be turned on at night for the duration of the fallout season.

The plea also provides that the county will make a payment of $180,000 to partially repair the harm of past takings to an account to be established at the National Fish and Wildlife Foundation for use to benefit protected seabirds on Kauai, and a payment of $30,000 to reduce the harm from anticipated future takings within the period of probation and prior to the county acquiring an incidental take permit, to the Kauai Humane Society to augment its Save Our Shearwater program.

"The Department of Justice views the taking of protected wildlife as a serious violation of the law, and we are pleased that the county of Kauai is taking action to reduce the risk of harm to this threatened seabird," said Ignacia S. Moreno, Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division. "The county’s action will enable residents to continue to use county facilities, while protecting this native species that is part of Hawaii’s cultural and natural heritage."

The county faced a potential maximum sentence of five years probation and statutory maximum fines of $15,000 to $25,000 for each MBTA or ESA violation – more than $720,000 in total – for which it might have been found guilty after trial. In addition, mandatory conditions of any sentence of probation require that no further violations of law be committed during the period of probation.

The Endangered Species Act prohibits the unauthorized taking, including harming and harassing, of species listed as threatened or endangered. The Migratory Bird Treaty Act prohibits the unauthorized taking, including wounding or killing, of bird species listed as migratory.

Assistant Attorney General Moreno credited special agents from the U.S. Fish and Wildlife Service for the investigation of the case culminating in the information and agreement.

The case is being prosecuted by the Environmental Crime Section, Environment and Natural Resources Division, U.S. Department of Justice.


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