Settlement talks have been scheduled for next month in a lawsuit over how to protect endangered Hawaiian petrels from bright lights at the oceanfront Grand Wailea hotel on Maui. maui locator badge

Earthjustice sued the hotel’s owners in early February for failing to take what the organization considers adequate measures to shield the seabirds from lights that can attract and disorient them, particularly fledglings. The firm is representing the Conservation Council for Hawaii and Center for Biological Diversity.

Grand Wailea’s owners, through their lawyers, deny the allegation. They have asked a judge to dismiss the lawsuit and to make Earthjustice pay the legal fees. A settlement conference is set for May 18 in U.S. District Court.

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

 

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

Hawaiian petrels were listed as endangered in 1967 after their numbers declined due to habitat loss in nesting locations and predation by feral cats, mongoose, rats, goats, deer and other species, among other things. Their largest nesting colony in Hawaii is thought to be atop Haleakala on Maui.

During fledging season which runs from late September to early December, young petrels head out to sea for the first time in search of squid. Before they get to the ocean the birds are often drawn to artificial lights on land, circling them until they drop to the ground from exhaustion. They also collide with power lines, telephone poles, rooftops and other human-made structures. Adult petrels also suffer injury and death when they are drawn toward bright lights, according to the Earthjustice complaint.

Between January 2008 and December 2021, at least 15 petrels grounded at the Grand Wailea, attracted by the resort’s lights, with the most recent one found last October, said Leinaala Ley, Earthjustice senior associate attorney.

Cecelia Frisinger with Maui Nui Seabird Recovery Project gets ready to release a Hawaiian petrel after it was distracted by lights. Courtesy: 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 sources of bright lights exist on Maui, the Grand Wailea stands out as a “high-take zone,” meaning a particularly dangerous spot for petrels, according to the complaint.

Under the 1973 Endangered Species Act, to “take” means to kill, harass or harm an animal that’s protected by the federal law.

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

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

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

Jay Penniman, project manager, said when his organization receives a report, someone immediately heads to the hotel, documents the circumstances, and helps the seabird. If the injured bird is in bad shape, it gets flown to the Big Island’s Hawaii Wildlife Center where emergency medical and rehabilitative services are provided.

Jay Penniman holds a Hawaiian petrel that was distracted by artificial light. Courtesy: Maui Nui Seabird Recovery Project

Penniman’s group is a project of the Pacific Cooperative Students unit of the University of Hawaii at Manoa in association with the state Department of Land and Natural Resources, Division of Forestry and Wildlife, and Pacific Rim Conservation.

Penniman wants to see a Maui Seabird Habitat Conservation Plan created like the islandwide one developed on Kauai following years of litigation. The Kauai plan enables multiple entities that emit bright light to take collective measures to mitigate and minimize their impacts on endangered and threatened seabirds and avoid being in violation of federal law.

Such measures can include deactivating unnecessary lights, shielding existing lights, angling them downward, and lowering their intensity. If threats to seabirds cannot be avoided entirely, the entity must apply for an “incidental take” permit which requires them to take certain actions to minimize harm.

The Kauai plan was developed over the course of about 10 years and finalized in 2020, said Michelle Bogardus, assistant field supervisor for the U.S. Fish and Wildlife’s Pacific islands office.

Before the plan was finalized, hundreds of threatened and endangered seabirds were dying on Kauai as development projects, including resorts and large subdivisions, sprang up, according to a Department of Land and Natural Resources plan description.

As initial planning took place, over 100 businesses and other entities were contacted on Kauai “resulting in many voluntary changes” including the installation of seabird-friendly light and an overall reduction in the number of lights on Kauai. Other changes came about after litigation and settlement agreements. Participation in the plan is voluntary.

Some eight entities on Kauai participate in the plan including hotels, a cruise line, the state transportation department, a coffee company, a commercial real estate company, and Kauai County, Bogardus said.

Penniman said he’s been discussing the idea of creating a Maui seabird conservation plan with the U.S. Fish and Wildlife Service and the DLNR. What it comes down to is getting a grant for about $125,000 to $150,000 to hire a consultant to write a draft plan, which Penniman estimates would take about a year to complete.

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

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.

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