On August 15, Environmental Court hearings resume in a case brought in May by Maui resident Tina Lia and the group she founded, Hawaiʻi Unites, to halt a project aimed at saving critically endangered honeycreepers from extinction.
With the warming climate, populations of the avian malaria-carrying mosquito, Culex quinquefasciatus (southern house mosquito), have expanded into higher elevations that once provided the endemic Hawaiian birds with some refuge. And the bird populations have plummeted as a result.
The consortium known as Birds, Not Mosquitoes, which includes public and private conservation entities, plans to release into the forests of East Maui male C. quinquefasciatus mosquitoes carrying a strain of the Wolbachia bacteria (wAlbB) that is not found in those mosquitoes locally. Trial releases have already begun.
Male mosquitoes carrying the different strain are effectively sterile and any wild females that mate with them would produce no offspring. And because female mosquitoes only mate once in their lifetimes, the overall mosquito population is anticipated to drop.
The technique, called the incompatible insect technique (ITT), has been successfully used at smaller scales to suppress mosquito populations where the diseases they carry threaten human health. Resource managers here hope that the technique will save the kiwikiu and ‘akohekohe from disappearing from the wild in the very near future.
Lia and Hawaiʻi Unites argue that the mosquito release could have catastrophic effects on public and environmental health. They rely heavily on the opinion of Lorrin Pang, the Maui County health officer for the state Department of Health.
Among other things, Pang has warned that the wAlbB strain — or whatever other foreign strain that might be used in future releases — could be horizontally (non-maternally) transferred to female C. quinquefasciatus mosquitoes or to other organisms. And that transfer could render the whole effort ineffective, or it could increase the ability of other Aedes mosquitoes to transmit the West Nile virus to humans.
Because of these concerns and others, Pang and the plaintiffs argue that the project’s potential effects should be studied further before it proceeds.
Pang testified for the plaintiffs in his personal capacity as an expert witness on disease vectors. He stressed the need for an environmental impact statement at a July 21 hearing on Lia’s motion for a preliminary injunction. Lia and Hawaiʻi Unites do not plan to call any more witnesses.
Attorneys representing the state Department of Land and Natural Resources and its board, which accepted an environmental assessment for the project in March, presented one witness before the hearing concluded for the day.
That witness, Nicole Ferguson, a mosquito research/control field supervisor for the Maui Forest Bird Recovery Project, testified that whether a human or bird swallowed a released mosquito or was bitten by one, the Wolbachia bacteria would not likely survive. Ingested mosquitoes and the bacteria would be digested into proteins, fats, and enzymes, she said. She added in response to a question about bites that the bacteria is geared toward existing in insects and that there are no studies indicating that Wolbachia can live within mammals or birds.
When hearings resume, the state may call Molly Hagemann, vertebrate zoology collection manager at the Bishop Museum; Owain Edwards, an entomologist with the Australian government research agency CSIRO; state entomologist Cynthia King; former Hawaiʻi Health Department entomologist/epidemiologist Lincoln Wells; and the National Park Service’s Noah Gomes, an expert on native Hawaiian birds.
At the July hearing, Judge John Tonaki made it clear that he’d read all the documents the parties had submitted, including those from intervenor American Bird Conservancy and Conservation Council for Hawaiʻi, which is participating as an amicus curiae.
The state’s filings, as well as those from ABC and CCH, argue that the environmental assessment addressed the concerns raised by Pang and the plaintiffs. What’s more, they point out that courts generally defer to agency determinations regarding the best science. They add that the balance of harms in this case weighs heavily in favor of the project moving forward.
Horizontal Transfer
In response to the comments on the draft EA that the project could result in the horizontal transfer of the Wolbachia bacteria, the final EA points out that Wolbachia is already commonly found in arthropod species in Hawaiʻi, the C. quinquefasciatus mosquitoes here already carry Wolbachia strains (wPip), and the strain that the released mosquitoes will carry — wAlbB — is already present in Aedes albopictus mosquitoes here.
“These mosquito species have been in Hawaiʻi since 1826 and 1896, respectively. It is highly improbable that incompatible male mosquitoes, which cannot reproduce and will die out in the environment less than a week after release, are more likely to undergo horizontal transmission of Wolbachia than the existing populations of mosquitoes which have been reproducing on the landscape for the last 125–200 years,” the EA states.
The state, CCH and ABC highlighted this point. ABC also noted that a 2022 Hawaiʻi Supreme Court decision regarding the impacts of a wind farm on endangered Hawaiian bat populations explained that the deference courts grant to agencies “arises from the fact that agencies possess and exercise subject-matter expertise and experience the courts generally lack. These qualities place agencies in a better position than the courts to evaluate scientific investigations and research.”
ABC, represented by attorneys Maxx Philips and David Kimo Frankel, added that Lia and Hawaiʻi Unites “rely almost exclusively on the inadmissible testimony of Lorrin Pang, who is not qualified to express his many opinions. In particular, Pang is not qualified to opine on the risks posed by Wolbachia. Even if his opinion can be considered science, ‘not all scientifically collected information is necessarily reliable data or the best data.’ Keep the N. Shore Country … ‘The Board may therefore weigh the information before it, identify some information as inapplicable, and exclude that information from its calculations if it does not constitute the best scientific and other reliable data available.’”
The EA concedes that “over millions of years, horizontal transfer of Wolbachia has occurred numerous times. However, Wolbachia shows a high degree of host endemism (only lives within one host species or closely related species) especially the strains involved here, wPip and wAlb. This high rate of endemism itself is evidence of the rarity of horizontal transfer. …
“Both the Asian tiger mosquito (Aedes albopictus) and the yellow fever mosquito (Aedes aegypti) live in the same environments in many parts of the world, including on Hawaiʻi Island. The Asian tiger mosquito is nearly always infected with Wolbachia naturally (the same strain that would be used in the proposed action), while the yellow fever mosquito is naturally uninfected by Wolbachia, and yet there has never been evidence of horizontal transfer of Wolbachia between these species. There also is no evidence that the strain of Wolbachia found in southern house mosquitoes has been transmitted to the Asian tiger mosquito (or any other mosquito), or vice versa, in Hawaiʻi (or anywhere else) despite co-occurrence for the past >130 years. Further, there is no evidence of transfer of any mosquito Wolbachia to other arthropods, including native Hawaiian insects. The low rate of horizontal transfer among related species, such as A. albopictus and A. aegypti, would suggest that the rate of transfer among unrelated arthropods would be even lower.”
Conjecture
In addition to horizontal transmission, the state’s attorneys argue, the plaintiffs’ “litany of unfounded concerns” include “possible increased pathogen infection, effect of Wolbachiaon forest birds, accidental release of females, science supporting the EA’s finding that mosquitoes pose no risk to human health, unexpected evolutionary events, biopesticide drift, biosecurity threats, whether the lab-bred mosquitoes carry diseases, the impacts of drone flights to release the mosquitoes, the biodegradable packaging used to contain the mosquitoes before they are released, alleged introduction of an invasive species, that this is the first time this technique has been used for conservation purposes, and that it was improperly ‘segmented.’ These allegations are not only incorrect, but do not identify any deficiencies that would make the EA insufficient.”
Pang has argued that a study showing Wolbachia being transferred among ants in a colony feeding on fungus gardens suggests that the released male mosquitoes could transfer their new bacteria strain to females at shared feeding sites.
He’s also pointed to a study of the transmission of Wolbachia via mouth, from parasitoid wasps to the aphids (white flies) that they feed on. “More research into which predators, like the damselfly and dragonfly, sequentially feed on both male and female mosquitoes is needed to determine how this may affect Maui’s ecosystems,” he stated in a paper describing his fears of horizontal transmission.
Pang adds that another study on the different ways Wolbachia is transmitted among nematodes and arthropods raises the possibility that the male mosquitoes in East Maui “may transmit the introduced strain to wild females through blood, mucus, and semen during mating.” Despite the fact that female mosquitoes only mate once, Pang claims, “Granted, if this occurs via venereal route in the wild female mosquito, [in] the first half of their life their matings will be sterile. However, after this their matings will produce offspring of both sexes and soon will ‘sweep’ the population with the introduced Wolbachia strain.”
In response to Pang’s reliance on the ant study, state entomologist King points out in her declaration to the court, “[a]nts, unlike mosquitoes, are social insects that live in colonies and regularly interact with parasites (beetles, mites, as well as parasitic ants, wasps, and flies) that cohabitate with them inside the colonies. Leaf cutter ants also tend fungus gardens, essentially cultivating a surrounding environment which is hospitable to bacterial growth outside of an insect. [The ant article] does not identify ecological and behavioral factors that apply to mosquitoes.”
With regard to the parasitoid article, she points out that mosquitoes have no known parasitoids.
King also addressed Pang’s claim that a couple of studies identified circumstances under which Wolbachia bacteria actually increased the malaria and West Nile virus pathogens in certain hosts. Pang relied on these articles to suggest that the Wolbachia bacteria in the mosquitoes released in East Maui could cause them to be more capable of transmitting avian malaria and WNV.
King noted that the malaria study showed that transient infections of Wolbachia enhanced certain Plasmodium (malaria) species in hosts. The East Maui program will use a stable infection, not a transient one, she pointed out, adding that the summary of that study actually supports using stable Wolbachia strains to inhibit disease vectors in mosquito populations.
With regard to the West Nile virus claims, King stated that the study Pang referred to “compared mosquitoes that do not naturally carry Wolbachia with those that have been given Wolbachia.” She noted that the Culex mosquitoes in Hawaiʻi already naturally carry Wolbachia.
CCH, represented by Earthjustice, also pointed out that with regard to disease transmission, “The FEA explained that the IIT mosquitoes ‘pose no risk to human health’ because only male mosquitoes—which do not bite—would be released, and even in the extremely unlikely event that a female IIT mosquito was released, a bite would pose no greater threat than any other mosquito bite.”
Based on information in the DLNR’s application to import the Wolbachia-infected house mosquitoes into Hawaiʻi, as well as figures published by the EPA online, Lia and Hawaiʻi Unites stated that one Wolbachia-infected female was expected to be accidentally released for every 250,000 males released.
“With the potential release of up to 775,992,000 biopesticide mosquitoes per week on Maui, this would calculate to up to 3,103 lab-strain-infected females released on the island per week, and each of those 3,103 females could produce a conservative estimate of 160,000 more females in her eight-week lifespan, amounting to potentially 496,480,000 lab-strain-infected females within each eight-week lifespan of the initial accidental release scourge.
“Female mosquitoes bite and spread disease. Lab-strain-infected females can breed with the lab-strain-infected males released, and population replacement can occur,” their attorneys state in their complaint.
In her declaration for the state, King agrees that the accidental release of too many females would result in population replacement. However, the chance of a female mosquito being released along with the males was minuscule, “approximately 1 in 50 million or 0.00000002%,” she wrote, adding that that chance decreases as the technology used in the project improves.
“The success of the project hinges upon its ability to sort out females but not because they pose an ecological threat. Rather, if too many females were released, a population of mosquitoes with the wAlb Wolbachia strain could take hold,” she stated.
She added that no studies suggest that a mosquito infected with the Wolbachia wAlb is more likely to transmit diseases than one with the wPip strain that the wild Culex mosquitoes already have.
Should an accidentally released female mosquito with the wAlb strain successfully mate with a male mosquito with the same strain, it would just make the project ineffective, not pose a threat to public health, she stated.
Given that these wAlbB-carrying Culex mosquitoes are harmless, the plaintiffs’ worry about wind blowing the mosquitoes beyond the project area — a concern they did not raise in their comments on the draft EA — is unfounded, the state and the conservation groups argue.
ABC points out in a memorandum that mosquito movement is inherent in the project. Mosquitos will be released in areas of potential high-density mosquito breeding grounds downslope of the birds’ ranges. From there, the mosquitoes may move upward into native forest bird habitat, according to the EA.
“Indeed, one of the strengths of this project is that the male mosquitos are expected to move, whether by drift or otherwise, and find the females to mate with. If many of them are blown out of east Maui watershed, that could potentially reduce the efficacy of the project. But it would not cause any adverse environmental impact. After all, the released ‘incompatible male mosquitoes are expected to survive for less than a week before mating and then dying.’ Plaintiffs fail to cite any evidence, or any logical reason to think that mosquitoes blown out of the east Maui watershed would have a significant impact on anything,” ABC’s attorneys wrote.
Balance of Harms
An injunction is considered an extraordinary remedy, and in deciding whether to grant one, courts consider whether the party seeking the injunction is likely to prevail on the merits; whether the balance of irreparable harms favors the injunction; and whether the public interest supports the injunction.
Lia and Hawaiʻi Unites argue that, based on Pang’s claims, the precautionary principle requires a full environmental impact statement that investigates the concerns they raised (increased pathogen infection, population sweep, horizontal transmission, wind drift, etc.), which they insist are not conjectural.
“Defendants would have the court focus solely on the threat of extinction of native birds but in doing so ignore the potential for catastrophic and irreversible effects on the environment from the experiment that is being proposed to save them. …[A] pause in the release of millions of infected mosquitos until the matter can be decided on the merits does not do irreparable harm to defendants or the endangered birds that are the intended beneficiary of the proposed experiment,” Lia’s attorneys Margaret Willie and Tim Vandeveer state.
To this, the Earthjustice attorneys argue that Lia and her group never say how the DLNR could or should expound on those issues beyond what’s already in the EA.
In any case, the balance of harm tips strongly in the state’s favor, the attorneys state, echoing the positions of both the state and ABC.
In CCH’s amicus brief, they continue, “Plaintiffs’ claim to irreparable injury says nothing in particular about themselves. Instead they cite a hyperbolic fear of ‘potentially catastrophic, irreversible unintended consequences’ of the project, but the only consequence they mention is the possibility of ‘horizontal transfer.’ …
“Plaintiffs do not dispute that if left unchecked, the spread of avian malaria will drive the kiwikiu and ‘ākohekohe to extinction in as soon as two years. Nor do plaintiffs dispute that both species have declined by more than 70 percent in the last two decades, driven by the encroachment of mosquitoes carrying avian malaria into the birds’ upper-elevation habitat. Courts have recognized that ‘[e]nvironmental injury, by its nature, is often permanent or at least of long duration, i.e., irreparable.’ … Indeed, the extinction of entire species, by its nature, is as permanent and irreparable as it gets. …
“In sum, plaintiffs’ indistinct arm-waving against the program does not override the real and immediate threat of extinction without the program.”
They go on to cite a 1983 federal court decision (American Motorcyclist Ass’n v. Watt) that they say is directly analogous to the state case.
“[T]he court is faced here with the specific situation in which courts have declined to issue an injunction in the environmental context because granting the injunction would ‘actually jeopardizenatural resources’ and cause more harm to the environment. In AMA, the Ninth Circuit affirmed denial of an injunction aimed at blocking a management plan designed to alleviate the ‘danger of harm to . . . fragile desert resources’ by limiting motor vehicle usage through a California desert. The court reasoned that ‘strong environmental considerations militated against enjoining’ the plan, and that the ‘danger of harm’ to the environment in the absence of the plan weighed against an injunction,” they wrote.
Stopping the mosquito releases in East Maui would directly jeopardize natural resources “by prohibiting DLNR from taking action to prevent the imminent extinction of endemic Hawaiian forest birds. This would cause more harm to the environment and disserve ‘the greater public interest’ in preserving and protecting Hawai‘i’s endangered native wildlife. The undisputed and immediate danger of extinction in the absence of the program thus compels the denial of plaintiffs’ motion,” they state.
The state deputy attorneys general add, “Plaintiffs do not raise any legitimate scientific criticism of the project. But the public will lose at [least] two native birds if this project is halted even by months. … The state respectfully asks this court to give the kiwikiu and ‘ākohekohe one last chance at fighting extinction and deny plaintiffs’ request for injunctive relief.”
— Teresa Dawson
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