Maui Resort and Earthjustice seek to resolve lawsuit over lights injuring seabirds

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Settlement talks are scheduled for next month in a lawsuit over how to protect endangered Hawaiian petrels from bright lights at the Grand Wailea beachfront hotel in Maui.

Earthjustice sued the hotel’s owners in early February for failing to take what the organization considers adequate measures to protect seabirds from lights that can attract and confuse them, especially nestlings. The company represents the Conservation Council for Hawaii and the Center for Biological Diversity.

The owners of Grand Wailea, through their attorneys, deny the allegation. They asked a judge to dismiss the lawsuit and make Earthjustice pay the court costs. A settlement conference is scheduled for May 18 in the U.S. District Court.

A Hawaiian petrel exercises its wings after recovering from being disoriented by artificial light. Courtesy of Maui Nui Seabird Recovery Project

“We have integrated sustainability and stewardship into everything we do, and protecting wildlife in our community is of the utmost importance to us,” a hotel spokesperson told Civil Beat Thursday. .

Hawaiian petrels were listed as endangered in 1967 after their numbers declined due to habitat loss at nesting sites and predation by feral cats, mongooses, rats, goats, deer and other species, among others. Their largest nesting colony in Hawaii is believed to be at the top of Haleakala in Maui.

During the flight season, which extends from the end of September to the beginning of December, the young petrels go out to sea for the first time in search of squid. Before reaching the ocean, the birds are often drawn to artificial lights on land, circling them until they fall to the ground from exhaustion. They also collide with power lines, telephone poles, rooftops and other man-made structures. Adult petrels also suffer injury and death when attracted to bright lights, according to the Earthjustice complaint.

Between January 2008 and December 2021, at least 15 petrels washed up at the Grand Wailea, attracted by the station’s lights, with the most recent being discovered last October, said Leinaala Ley, Earthjustice’s senior associate attorney.

Cecelia Frisinger of the Maui Nui Seabird Recovery Project prepares to release a Hawaiian petrel after being distracted by lights. Courtesy of Maui Nui Seabird Recovery Project

Most of the downed petrels managed to recover, according to the lawsuit. But at least one of the recovered birds was later found dead, and Earthjustice says other birds are believed to have died after never being found.

While many bright light sources exist on Maui, the Greater Wailea stands out as a “high-drain zone,” meaning a particularly dangerous location for petrels, according to the complaint.

Under the Endangered Species Act of 1973, “taking” means killing, harassing, or injuring an animal that is protected under federal law.

While Earthjustice argues that Grand Wailea violates the Endangered Species Act, it notes that the hotel has made some adjustments to its lighting and has taken steps to respond when a seabird is stranded. While these steps aren’t enough, they are something, the organization acknowledged.

“Grand Wailea staff have been cooperative over the years,” Ley said in an interview with Civil Beat on Wednesday.

When security guards, landscapers, cleaners and other staff found a downed petrel, they reported the incident to the Maui Nui Seabird Recovery Project, located in Makawao.

Project manager Jay Penniman said when his organization receives a report, someone immediately goes to the hotel, documents the circumstances and helps the seabird. If the injured bird is in poor condition, it is airlifted to the Hawaii Wildlife Center on the Big Island where emergency medical and rehabilitation services are provided.

Jay Penniman holds a Hawaiian petrel that has been distracted by artificial light. Courtesy of Maui Nui Seabird Recovery Project

Penniman’s group is a project of the Pacific Cooperative Student Unit at the University of Hawaii at Manoa in association with the State Department of Lands and Natural Resources, Forestry and Wildlife Division, and Conservation from the edge of the Pacific.

Penniman wants to see a Maui Seabird Habitat Conservation Plan created like the one on the island developed in Kauai after years of litigation. Kauai’s plan allows several entities that emit bright light to take collective action to mitigate and minimize their impacts on endangered and threatened seabirds and avoid violating federal law.

These measures may include turning off unnecessary lights, shielding existing lights, tilting them down, and reducing their intensity. If threats to seabirds cannot be entirely avoided, the entity must apply for an “incidental take” permit which requires it to take certain actions to minimize harm.

Kauai’s plan was developed over a period of about 10 years and finalized in 2020, said Michelle Bogardus, assistant field supervisor for the Pacific Islands office of US Fish and Wildlife.

Before the plan was finalized, hundreds of threatened and endangered seabirds were dying on Kauai as development projects, including resorts and large housing estates, popped up, according to a description of the plan from the Department of Environmental Affairs. Lands and Natural Resources.

During initial planning, more than 100 businesses and other entities were contacted on Kauai “resulting in many voluntary changes,” including the installation of a seabird-friendly light and an overall reduction in the number of lights on Kauai. Other changes came after litigation and settlement agreements. Participation in the scheme is voluntary.

Some eight Kauai entities are participating in the plan, including hotels, a cruise line, the state Department of Transportation, a coffee company, a commercial real estate company and Kauai County, Bogardus said.

Penniman said he discussed the idea of ​​creating a Maui Seabird Conservation Plan with the US Fish and Wildlife Service and DLNR. It’s about getting a grant of about $125,000 to $150,000 to hire a consultant to write a draft plan, which Penniman said would take about a year.

“If they provide me with funding, I could hire someone to take the Kauai plan and modify it for Maui,” he said.

Coverage of Maui County by Civil Beat is funded in part by a grant from the Nuestro Futuro Foundation.

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