Lawsuits seek to protect Hawaiian seabirds from too-bright streetlights
Without seabirds returning to terra firma, Polynesian seafarers might never have found the remote Hawaiian Islands. Early Hawaiians searched for seabird flocks foraging in the vast ocean to pinpoint fish schools. And the lush Hawaiian forests would have lacked important soil nutrients if it weren’t for seabird droppings.
“You really wouldn’t have Hawaii without seabirds, just as you couldn’t really imagine it without the ʻōhiʻa trees or the monk seals, and the turtles and the forest birds,” said Brad Keitt, the oceans and islands director for American Bird Conservancy. “They are an integral part of the archipelago.”
For the last three decades, Earthjustice has gone after local governments, power companies and large resorts on Maui and Kauai with several lawsuits to establish protections for Hawaii’s endangered and threatened seabirds.
The most recent lawsuit by the environmental nonprofit law firm was filed earlier this month against Maui County, on behalf of the Conservation Council for Hawaii and the American Bird Conservancy. It was the second time Earthjustice has sued Maui County on the issue.
The lawsuit seeks protection for the threatened ʻaʻo, or Newell’s shearwater, the endangered ʻuaʻu, or Hawaiian petrel, and the endangered ʻakēʻakē, or band-rumped storm petrel.
The target: Too-bright streetlights.
The birds use the moon and stars to navigate during nocturnal flights. Confused by artificial lights, they circle the lights until they fall to the ground from exhaustion or after hitting buildings and other structures. There, they are scooped up by predators, hit by cars, or die of starvation or dehydration. Fledglings are the most vulnerable.
Earthjustice lawyer Mahesh Cleveland said it’s too early to know whether his organization will be able to reach an agreement with Maui County as it did once before, in a 2019 lawsuit, but they are “certainly open to it.”
“Our only concern here, really is the welfare of the birds,” he said. “We just want folks to do what’s right for the birds.”
The uniqueness of the Hawaiian Islands comes at a price. One of the most geographically isolated places on Earth, it also has one of the highest concentrations of endemic species — and many face extinction.
Hawaii represents less than 1% of the U.S. land mass, yet more than a quarter of nearly 1,600 threatened and endangered species in the country are found here. This has given Hawaii an infamous and unofficial title that does not make conservationists proud.
“We are the endangered species capital of the world,” Conservation Council for Hawaii executive director Jonetta Peters said.
Although Hawaiian Electric Co. is a co-defendant with Maui County on the lawsuit filed Nov. 19 by Earthjustice, Cleveland said the electric company is named because it owns and operates the streetlights. The county dictates how they are operated.
“At this point, it’s really sort of the county who calls the shots, and therefore we need them to get on board too,” he said.
Shayna Decker, HECO’s director of government and community affairs, said the electric company agreed to continue efforts to minimize potential impacts to seabirds and to increase their populations. The county Department of Corporation Counsel told Civil Beat that “the County of Maui is not able to comment on pending litigation or legal proceedings.”
Which Streetlights Are Seabird Safe?
Maui County settled the 2019 Earthjustice lawsuit within two years, halting plans to convert amber-colored low-pressure streetlights to bright LED lights — which have a high blue light content that attracts seabirds — without environmental review, according to Earthjustice senior attorney David Henkin.
Despite Maui Mayor Richard Bissen saying in a recent public meeting that the required lights “are difficult to come across,” Cleveland said filters could be easily added to the hundreds of LED lights the county had purchased before the 2019 lawsuit was filed.
Earthjustice lawyers say the county hasn’t done much to address the problem aside from a 2022 county ordinance that limits blue light content to 2% in new streetlights and gives the administration until July 1, 2026, to retrofit already-installed LED streetlights with approved light bulbs.
“We know that they can do it; we know that there are filters available,” Cleveland said, adding that Hawaii island had no trouble coming into compliance with a similar county lighting ordinance.
Last January, Earthjustice sent a letter of intent to sue the county and HECO over violations of the federal Endangered Species Act, again citing threats to seabirds from artificial lights.
In September, Henkin warned of a lawsuit against Maui County “because they are not doing anything about the seabirds.” At that time, the county’s communication team told Civil Beat they expected a lawsuit to be filed before the end of the year.
On Nov. 19, Earthjustice followed through. Cleveland said “it makes perfect sense” for the county to settle this lawsuit, too, because the Endangered Species Act is basically a “cut-and-dry statute,” and there’s no question streetlights harm and kill endangered and threatened seabirds.
“If the county decides they want to litigate this, it’s really just going to be a huge waste of time and resources,” he said.
Keitt said the American Bird Conservancy also looks forward to working with Maui County to find other ways to protect the seabirds.
“There are clear actions that the county can take to reduce the threat of light attraction,” Keitt said, including shielding lights, turning off unnecessary lights, reducing lights to safe levels and identifying light wavelengths that have the least impact.
Fastest Declining Bird Species
Whether lawsuits have helped seabird populations bounce back remains to be seen. Data are mostly outdated and difficult to gather. Besides nest-counting in steep slopes and remote areas, many estimates are based on radar detection of seabird flocks from 2005 or earlier.
Alongside bright lights and power line threats, seabirds also face introduced predators — cats, rats, mongooses, mice and dogs — and habitat loss due to introduced pigs, goats and mouflon sheep.
“We need to save them, because once they’re gone, they’re nowhere else in the world,” Peters said of the Hawaiian seabirds.
American Bird Conservancy spokeswoman Agatha Szczepaniak said most people don’t realize seabirds are the fastest declining bird species in the world.
The ʻakēʻakē, the smallest and rarest seabird in Hawaii, was once abundant throughout the Main Hawaiian Islands. Now, Szczepaniak said most of the 240 ʻakēʻakē breeding pairs are on Kauai, with a few colonies on Maui.
The ‘ua‘u is a large nocturnal petrel. There are about 20,000 of them in Hawaii, with a breeding population estimated between 4,500 and 5,000 pairs, with about 1,000 breeding pairs on Maui, according to the Maui Nui Seabird Recovery Project.
The ‘a‘o population in Hawaii has declined by 75% since the 1990s. There were 84,000 birds, with 14,600 breeding pairs in 2005. They are present throughout Hawaii, but three-quarters of them are on Kauai.
Legal Action Has Forced Changes
Lawsuit settlements over the years by Earthjustice and others have prompted defendants to agree to minimize and mitigate harms to seabirds while applying for federal “take permits,” which establish how many birds can be incidentally harmed or killed once mitigation measures are in place.
“If it wasn’t for the lawsuits, these entities would have just continued going along their merry way, taking seabirds,” Cleveland said.
This year alone, Earthjustice has reached two settlements, one with HECO Oct. 30, and another with the Grand Wailea Resort Aug. 7. For the resort, it was a second settlement since 2022.
HECO agreed to place diverters on power lines on Maui and Lanai in areas known for seabird strikes, lower the power lines at Haleakala, donate $480,000 in annual funds to an ‘ua‘u habitat and monitoring project on Maui, and continue its plan to study power lines’ impact on seabirds.
The resort agreed to seek an Endangered Species Act incidental take permit, donate $5,000 monthly to Fish and Wildlife Foundation projects benefiting the ʻuaʻu on Maui and reduce blue light levels in its outdoor light fixtures.
The first seabird-related lawsuit Earthjustice filed was on Kauai in the mid 1990s, responding to concerns of seabirds striking power lines strung across valleys on the North Shore, according to Cleveland.
In 2010, the group filed suit against the former Princeville Resort, now called 1 Hotel Hanalei Bay, on Kauai’s North Shore. The result was a reduction of bright artificial lights around the resort.
Around that time, Earthjustice also sued Kauai Island Utility Cooperative, which had taken over the island’s power supply in 2002.
Cleveland said because the cooperative was aware of the 1990s lawsuit against the former utility company, they were able to reach a settlement that included funding for Save Our Shearwaters, a program that has rehabilitated Kauai’s native species since 1979.
Over the years, that organization says its volunteers and residents have collected more than 35,000 seabirds that have fallen to the ground after interaction with streetlights and 90% of them were later released back to the wild.
In 2010, Kauai’s three public high schools suspended their popular Friday night games during fledgling season, which goes from Sept. 15 to Dec. 15, after a separate action by the U.S. Justice Department found them in violation of federal laws related to the birds.
Local families weren’t happy. Some showed up at the rescheduled Saturday morning games wearing T-shirts that read “Buck the Firds.”
Cleveland said Earthjustice met with the Kauai utility co-op again in 2020. The co-op agreed to apply for an incidental take permit and do a habitat conservation plan on the island.
That resolution came three years after the schools were allowed to resume Friday night football during fledgling season — but only on four nights a year.
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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.