New & Noteworthy: Shearwater Deaths, Paintball Poison

posted in: March 2013 | 0

Shearwater Deaths: In January, the state Attorney General’s office asked the chief procurement officer for an exemption from the usual bidding practices. The AG was seeking to retain legal counsel to represent it in a criminal case that the U.S. Department of Justice was preparing against the state Department of Transportation over the agency’s failure to take measures to protect sea turtles and migratory birds – especially wedge-tailed shearwaters.

The procurement officer approved the exemption request, which allows the Department of Attorney General to spend up to $150,000 on legal services provided by “a law firm with experience in this area.”

On January 23, Environment Hawai`i posted news of this in the EH-Xtra column on our website. Details of the potential prosecution and of the law firm the state intended to hire were provided in a memo, written by deputy attorney general Laura Kim, that was attached to the exemption request form. Both the form and the memo were visible to anyone who wanted to view them on the state procurement office’s website listing bid exemption requests.

Aaron Fujioka, chief procurement officer for the state, approved the request on January 30. Soon thereafter, the two-page memo accompanying the request was taken off the website. (A link to the memo is still available on our website, however:

We sought to ask Kim why the memo was removed from the procurement office website; she had not returned our call by press time.

According to the memo, attorneys from the Department of Justice informed the state DOT that its lights are causing unlawful takes of birds, sea turtles, and moths protected by the Migratory Bird Treaty Act or the Endangered Species Act. “Although counsel for DOJ stated that the investigation is statewide, the priority is on O`ahu, where DOJ claims a considerable number of wedge-tailed shearwaters … have been supposedly injured by DOT lights,” Kim’s memo stated. The DOJ gave the state a choice of entering a plea agreement or facing a criminal trial.

To justify the exemption request, the AG’s office noted, “The type of legal expertise required to defend the DOT is unique, as few attorneys in the United States have experience with the MBTA. The Attorney General does not develop a list to procure the services of criminal defense attorneys … as generally the state is immune from criminal liability.”

The law firm that the AG’s office had selected was that of Boston’s Bingham McCutchen, one of the largest in the country. It “proposed a flat fee of $28,000 to conduct legal research on the constitutional defenses available to the state and to meet with the DOJ prior to indictment,” the memo says. “If the DOJ should file an indictment or seek civil penalties, Bingham proposes a blended rate of $695/hour for a team of up to six attorneys, as needed.”

Paintball Poison: The Department of Land and Natural Resources has obtained the state procurement officer’s approval to purchase a herbicide that can target remote stands of Australian tree ferns, kahili ginger, and banana poka.

The herbicide, HBT-IMAZ, is registered for use only in the state of Hawai`i, and only on those three species of plants. What makes it even more unusual is the method of delivery: paintballs, shot from airguns by marksmen in helicopters or on the ground.

Maker of the ammo is the Nelson Paint Company, which is probably better known for its paintballs than its pesticides.

According to Lance de Silva, of the Kaua`i branch of the DLNR’s Division of Forestry and Wildlife, the chemical was developed by James Leary of the University of Hawai`i’s College of Tropical Agriculture and Human Resources. “He worked hand in hand with the company” – manufacturer Wilbur-Ellis – “to get it registered,” and then with the paint company to design the delivery system. “It’s kind of his baby,” de Silva said.

Now that approvals are in hand, de Silva hopes to be able to start using the product in a few months. He won’t be using it to control banana poka or kahili ginger, he said, but the paintballs are perfect for getting to Australian tree ferns in difficult-to-reach areas.

What makes it especially cost-effective, he said, is the fact that control can be done at the same time that the plants are identified. “When we do surveys for these weeds, we can actually treat them at the same time we find them, rather than having to return. We can suppress as we’re doing the surveys. It’s a nice, cost-efficient tool.”

Volume 23, Number 9 — March 2013