(This article has been corrected. The original version included the wrong date for the preliminary injunction hearing. It was not to be on July 19, but on July 21.)
On July 21, Environmental Court Judge John Tonaki will hear a motion by Tina Lia and Hawaiʻi Unites for a preliminary injunction barring an effort on Maui to reduce the prevalence of avian malaria-carrying mosquitoes where critically endangered Hawaiian forest birds live.
The plan, evaluated in an environmental assessment approved by the state Board of Land and Natural Resources in March, is to release into forested areas male mosquitoes carrying a strain of the Wolbachia bacteria that differs from that of resident mosquitoes. Any offspring resulting between the introduced and local mosquitoes would be inviable. As a result, the overall mosquito population would drop.
Lia, who formed the group Hawaiʻi Unites in January, has argued that the plan is experimental and could have devastating effects. Her complaint, filed in 1st Circuit Court, argues that the Land Board and Department of Land and Natural Resources violated both the Hawaiʻi Environmental Policy Act by not requiring a full environmental impact statement and state law on administrative procedures.
On June 26, attorneys for the state filed a partial motion to dismiss the complaint. That motion will be heard on July 19.
The attorneys argued that Count II of the complaint should be dismissed because the plaintiffs fail to allege any facts showing the Land Board departed from proper procedures for approving an EA and issuing a finding of no significant impact, or for denying a contested case hearing.
Lia had orally requested a contested case hearing at the Land Board’s meeting in March, but it was denied. She and her group filed the complaint before the board could decide on their written petition for a contested case hearing, which was eventually denied as well.
The state deputy attorneys general noted that HEPA allows the public to challenge agency determinations, which plaintiffs have done in Count I. However, the act does not allow for contested case hearings on the acceptance of an EA because such a decision does not affect a constitutionally protected interest, they added.
“Because the final EA is only an environmental review of the project and does not itself permit any action in the project to go forward, it cannot affect property interests,” they wrote.
Intervention
Also on June 26, the American Bird Conservancy filed a motion to intervene as a defendant.
The mosquito release is a project of a consortium of state, federal, and non-profit agencies known as “Birds, Not Mosquitoes.” ABC, a founding member, has “invested over $500,000 in developing and testing the incompatible mosquito in a laboratory setting, and led community engagement efforts to raise awareness of the plight of Hawaiian honeycreepers and the IIT (incompatible insect technique) solution with the general public, community leaders, and legislators,” ABC’s memorandum in support of its motion states.
“ABC seeks to intervene to support the defendants and the adequacy of the EA. … [T]he complaint would stop ABC’s rescue efforts in its tracks, and in all likelihood result in the extinction of some of the species ABC has tried so hard and long to protect,” the memo continues.
On June 29, the Earthjustice law firm, on behalf of the Conservation Council for Hawaiʻi, filed a motion not to intervene, but to merely participate in the case through the filing of amicus briefs.
In its memorandum supporting its motion, CCH noted that it has been involved in “countless matters before state and federal agencies and courts on environmental issues, including matters concerning protection of endangered and threatened species. CCH has been a party to lawsuits, settlements, and agency proceedings concerning the protection of endangered and threatened wildlife, including participation in various habitat conservation planning processes statewide. … CCH has also been directly involved in legal matters under the Hawai‘i Environmental Policy Act … which is the law at issue in this case.”
“Likewise, CCH’s counsel Earthjustice has had extensive experience practicing for over 30 years in matters concerning the protection of native and imperiled wildlife in Hawai‘i and the application of the HEPA law…. CCH and Earthjustice note that Plaintiffs appear to have copied liberally from a complaint Earthjustice filed in another case before this Court, which further highlights how CCH and its counsel can offer important insights regarding Plaintiffs’ proffered interpretations and application of HEPA in this case.
“Plaintiffs’ request to halt the program known as Birds, Not Mosquitoes directly affects CCH’s interests in preventing the extinction of endangered native species. As CCH will explain in further detail in its brief should this court grant CCH’s request to participate as amicus, the balance of harms weighs heavily against granting plaintiffs’ requested relief. … If the spread of avian malaria is not promptly mitigated, at least two species of endangered birds, the kiwikiu (Pseudonestor xanthophrys) and ‘ākohekohe (Palmeria dolei), are expected to go extinct within two to ten years. Plaintiffs’ motion relies heavily on alarmist speculation and conjecture in their attempt to halt the program in its tracks and threatens to harm the public’s interest in conserving and protecting Hawai‘i’s gravely imperiled native wildlife and ecosystems,” CCH’s memorandum states.
Both ABC’s and CCH’s motions did not require hearings.
— Teresa Dawson
Leave a Reply