Civil lawsuits may be a dime a dozen, but with criminal indictments — especially of corporations — it’s another story.

The recent decision by the U.S. Department of Justice to file criminal charges against the Kauai Island Utility Cooperative for alleged violations of the Endangered Species Act and Migratory Bird Treaty Act is a step rarely taken in enforcing those laws.

The 22-page indictment [pdf] handed down May 19 includes 19 different counts for knowingly taking — a term that includes harassing, harming, wounding and killing — dozens of Newell’s shearwaters, an endangered seabird found only in Hawaii, as well as Laysan albatrosses, between 2005 and 2009.

“It doesn’t happen very often considering how many birds there are and how many utilities there are,” said David Bouchard, chair of the Avian Power Line Interaction Committee. “I can think of three others in 20 years.”

APLIC is a national trade association that was started informally in the 1970s as a cooperative effort between biologists, regulatory agencies, conservation agencies and electric utilities themselves to look at why birds fly into power lines and how that can be prevented.

Typically, criminal charges in environmental cases in Hawaii involve single individuals who violate a law. For example, a lone gunman was convicted in 2009 after he intentionally shot and killed an endangered Hawaiian monk seal on Kauai. It is uncommon for corporations to be charged criminally. Even as the worst oil spill in U.S. history unfolds in the Gulf of Mexico, it took the federal government almost six weeks to even bring up the possibility that British Petroleum could face criminal charges.

Yet in Hawaii, the Department of Justice has made a federal criminal case out of the failure of Kauai’s only electric to complete a habitat conservation plan and receive a permit that would have allowed a certain number of bird deaths.

Development in Kauai, home to the vast majority of the state’s endangered birds, has put many species in a tenuous position. Lights and power lines are a particular problem, and the state and federal governments had been working for years with the electric co-op and other entities to minimize their impact.

It is unclear if the criminal indictment is part of a new strategy by the Justice Department, or if there has been a policy shift on how seriously to take environmental violations since President Barack Obama took office last year. The department declined to comment on the case beyond the indictment and also would not answer questions about criminal indictments in general. The U.S. Fish and Wildlife Service also declined to comment.

Civil Beat filed a Freedom of Information Act request with the Justice Department’s Environment and Natural Resources Division on June 3. The request [pdf] seeks a list of criminal indictments for multiple or repeated violations of the Endangered Species Act or Migratory Bird Treaty Act since the year 2000.

Earthjustice, a strong advocate for adherence to environmental law that had previously brought a civil lawsuit against KIUC for similar infractions, said the move was noteworthy because it’s “very, very, very rare.”

“This is like finding a four-leaf clover,” said Earthjustice attorney David Henkin, who welcomes the federal indictment because criminal cases alone can punish past violations.

Civil cases can only use past actions to establish a pattern and ask a court to step in and prevent future behavior, he said. The lack of any punishment gives the utility little incentive to change its policies, especially when doing so is costly.

“We can’t actually seek a penalty for that, we can just request the court change their conduct going forward, which is why we welcome the Department of Justice, finally, doing what is needed in this situation,” Henkin said. “Looking at really substantial penalties for past behavior … really changes the calculus. Those are the types of things that hopefully are going to help change behavior.”

Asked if the lawsuit changes KIUC’s calculus, President and CEO Randy Hee said the co-op was already taking steps to mitigate bird takes but was waiting to hear back from the U.S. Fish and Wildlife Service and the Hawaii Department of Land and Natural Resources Division of Forestry and Wildlife on a habitat conservation plan. It’s possible that the agencies might instruct KIUC to spend its money on “growing birds” by improving habitat areas.

“We’re not bird experts. We hire bird experts and we work with the agencies to decide what should be done,” Hee said. “Working with them and getting slapped at the same time is not an easy thing to do.”

One potential project is an $18 million plan to underground lines in the highly trafficked — both by humans and seabirds — Wailua corridor. Hee said almost all of the funding is slated to come from the federal stimulus, but KIUC did all the engineering and has committed to chipping in any extra money that’s needed. The project is delayed while a new bridge across the Wailua River is held up by a lawsuit from a Native Hawaiian group.

“Given that this is what can happen as a result from waiting and working with the agencies, I’m thinking that maybe we shouldn’t be waiting and there are some things that we should go do,” Hee said. “Some people say it’s a reaction out of the lawsuit, and yes, but what’s the right thing to do? That’s what KIUC wants to do. KIUC wants to do the right thing.”

The Avian Power Line Interaction Committee’s Bouchard, also an environmental specialist for American Electric Power, one of the country’s largest electric companies, said there are myriad considerations in trying to construct a line from Point A to Point B.

“From the surface, it seems like a simple thing. They hit the lines, so put them underground. That’s the simple answer,” he said. But undergrounding lines is five to 20 times more expensive than traditional overhead lines, and the Hawaii Public Utility Commission mandates that utility costs stay low. Environmental impacts like the potential of damaging Native Hawaiian burials further complicate the decision to place lines underground.

Other steps could include large ball markers to alert birds to the lines’ presence. Lights can be designed in a way to reduce glare and prevent birds from circling them. Lines can sometimes be arranged horizontally rather than vertically to give birds more sky to maneuver in. Lines can also be lowered to below the vegetation line.

But there are many different species of birds — more than 1,000 [pdf] are covered by the Migratory Bird Treaty Act alone — and each creates its own environmental issues. Some principles make sense across the board, but what works for one bird in one state may not necessarily work for a different bird across the country.

Some species, like the Newell’s shearwater, move extraordinarily fast and need a long runway or steep drop to take off. Others have poor eyesight, or are distracted by prey when flying. And the specifics of each species make it nearly impossible to know which mitigative techniques will help the birds.

“It’s one of those things where the more you know,” Bouchard said, “the more you realize you don’t know.”

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