The lawsuit brought by Sydney Ross Singer to defend the red mangrove from eradication efforts has finally ended. The state Department of Land and Natural Resources and the Hawai`i Tourism Authority settled with Singer last December. The remaining defendants – Hawai`i County and the non-profit organization Malama O Puna – settled in May. The U.S. Fish and Wildlife Service, which had also been named as a defendant, was dismissed in April 2010, when Singer, representing himself, told a federal judge he wanted the case remanded to state court.
Singer included the Big Island Invasive Species Committee as a defendant as well. This group, a consortium of various public and private agencies, had helped Malama O Puna in the mangrove removal projects, but was not named in the permits that Singer was challenging. It was later dropped from the lawsuit.
As a practical matter, Singer’s challenge had little effect. At the time he filed his complaint, on February 8, 2010, Malama O Puna and the Big Island Invasive Species Committee had permits to remove red mangroves (Rhizophora mangle), by poisoning, pulling, or cutting, at several sites on the Big Island.
The first project, at the Wai `Opae Marine Life Conservation District and nearby private land, had been underway for nearly two years and was nearly completed.
With some 20 acres in mangrove on both public and private land, the Wai `Opae infestation represented the largest of the areas where Singer specifically wanted the eradication efforts to stop. According to Ann Kobsa, vice president of MOP and its invasive species coordinator, the Wai `Opae project was around 80 percent complete when the lawsuit was filed.
In addition to the work at Wai `Opae, Malama O Puna had also obtained Special Management Area (SMA) minor permits to remove mangroves from private land at Paki Bay, near Kea`au, and at land on and near two county beach parks: Isaac Hale, in Pohoiki, Puna, and Onekahakaha, in Hilo. The planning for another eradication project at Alula Bay, near Honokohau Harbor on the Kona side of the island, was just beginning when Singer sued.
The Four Counts
Singer claimed that Malama O Puna and the agencies that cooperated in, permitted, or financed its work were violating state and federal laws intended to protect the environment. But, with the federal lawsuit having been dismissed, Singer could only argue violations of state law as the case was presented in 3rd Circuit Court.
First, he alleged that the defendants had failed to comply with Chapter 343 of Hawai`i Revised Statutes (no environmental assessment or environmental impact statement was done for the projects). Second, he claimed that their work violated Chapter 342D, the state’s clean water statute, inasmuch as the pesticide used to poison mangroves could pollute the water, as could the foliage shed by targeted trees. In addition, he said, “large pieces and branches of dead mangrove trees can fall off and enter the ocean, posing a threat to swimmers, surfers, and boaters.”
Singer’s third claim was that the work was a threat to endangered species and thus violated Chapter 195D and was in conflict with the “environmental policies and guidelines” of Chapter 344. Chapter 195D is the state’s endangered species law, while Chapter 344 sets forth the state’s approach to conservation and public health and welfare.
Finally, Singer charged that the defendants were violating Hawai`i’s pesticide law, Chapter 149A, by using a pesticide, Habitat, in a manner not consistent with the product label.
Singer asked the court for a permanent injunction against the mangrove eradication efforts. He also asked it to require the defendants to: undertake a water quality monitoring program at project sites; halt the issuance of any new permits for such work and cancel existing permits; and post signs warning the public “that the area has been poisoned and may pose a health risk.” He also sought “fees and costs” and “damages to the full extent of the law.”
The injunction was denied, allowing MOP and its partners to continue with the mangrove removals. However, the Fish and Wildlife Service suspended its funding for one of the projects. According to Kobsa, “Nothing about the lawsuit stopped us. We continued to work. But it did gum things up. Government agencies got freaked out… After the Fish and Wildlife Service got sued, they pored over everything carefully and found they had not completed their cultural compliance,” a federal requirement.
That took months, she said, as a result of the State Historic Preservation Division (an agency within the Department of Land and Natural Resources) being so backed up. “When the Fish and Wildlife Service pulled out, we scraped by with volunteers,” said Kobsa, herself a volunteer. After the cultural review for Pohoiki (Isaac Hale Beach Park and nearby land) was finished, then the service decided they would do an environmental assessment.
For the Alula Bay project, the Fish and Wildlife Service is back on board, Kobsa said. Because the site is known to contain archaeologically significant structures, including a heiau, Historic Preservation was involved in the permitting as well. “It’s all going to be manual clearing – no herbicides,” Kobsa said. “We did an archaeological monitoring plan. SHPD wanted all mangroves cut to the ground, so why bother to poison the trees anyway. And because it’s such a relatively small area – seven-tenths of an acre of mangroves – and has road access, it’s do-able manually.” In addition to removing the mangroves, MOP will also be taking out pickleweed, another invasive species, and planting native coastal species.
All that’s needed now is for the county to issue the SMA minor permit, the Office of Conservation and Coastal Lands to issue a Conservation District Use Permit, and for the Board of Land and Natural Resources to approve a right-of-entry, needed because of the site’s archaeological value. Kobsa said she expects work there will begin in the fall.
Water Quality Issues
The summer of 2010, before the settlements were reached and after the preliminary injunction request had been denied, saw a flurry of charges and counter-charges exchanged between Singer, on the one hand, and the attorneys representing the state, county, and private parties.
One of the points Singer focused on was the fact that Malama O Puna did not remove from private land at Wai `Opae the trunks and foliage of mangroves that had been poisoned. (All the mangroves within the Wai `Opae Marine Life Conservation District had been removed by hand, without the use of pesticide.) He argued that the state Department of Health was also concerned by this practice, referring to an email to Singer from Jamie Tanimoto, a staffer with the DOH Clean Water Branch. In her email, dated February 4, 2010, just days before Singer filed his legal complaint, Tanimoto had written that, with all the leaves falling off after poisoning, there could be “water quality problems. Shedding foliage is the main concern I have… [M]y supervisor and I are working on what we can do to answer our questions.”
Singer had also asked the Department of Health if it was involved in or knew of water-quality testing being done at the sites where the pesticide was being used. Tanimoto responded by noting that the DOH itself was not involved in any such testing. In a phone call between her branch and Malama O Puna, Tanimoto wrote, the Clean Water Branch “requested that they start water quality monitoring.”
“However,” she continued, “bear in mind that their activities are not addressed in water pollution regulations, and if they are applying their approved herbicide correctly, they are not breaking any laws the Clean Water Branch can enforce upon.” Malama O Puna did, in fact, take water quality measurements at Wai `Opae. The report, prepared by Rich MacKenzie and Caitlin Kryss, was forwarded to the DOH.
ording to Singer, Malama O Puna was required to take out the dead and dying trees as a condition of its permits.
According to Kobsa, however, the permits required no such thing. In fact, for removing the mangroves from the state Marine Life Conservation District itself, no Conservation District Use Permit was required at all. In a declaration filed with the court, Kobsa stated that in February 2009, the Department of Land and Natural Resources’ Office of Conservation and Coastal Lands informed Malama O Puna that, in Kobsa’s words, “mangrove removal did not require a CDUP unless power tools were used (which they were not).” For the Pohoiki site, Kobsa continued, the DLNR “first said a CDUP would be needed … because Malama planned to use chain saws…. However, Malama has not and will not be using chain saws at the Pohoiki site.”
As to the volume of dead foliage, which Singer amply documented in photos taken of the work sites, Kobsa acknowledged the issue. “One of the major problems associated with mangroves in Hawai`i is the large amount of organic matter that they shed continually into the water,” she wrote. “Malama members have observed that in areas without vigorous flushing, this organic material, as it decomposes, forms a thick sludge that is anaerobic at the bottom, releasing sulfurous gasses, especially when disturbed. When the mangroves are killed, about one year’s worth of organic matter falls into the water over several month’s time, depending on how rapidly we move through an area.”
Although the amount of dead foliage may be unsightly, the removal effort actually reduces the volume of dead organic matter over time, Kobsa pointed out. “At Wai `Opae, it took Malama five months to complete the first round of injections to kill the larger trees and the herbicide takes up to three months to fully defoliate the trees,” she wrote. “Therefore, in eight months we caused the shedding of the amount of organic matter that would typically fall over the course of a year without treatment. If the mangroves were allowed to continue growing exponentially, the amount of organic matter shed into the water each year would quickly dwarf the amount that is shed as a result of our project.”
As to Singer’s contention that Malama O Puna left the dead mangroves in place to save money, he “is mistaken in his assumption,” Malama’s attorney, Elijah Yip, wrote in a responding memo to the court. “Non-removal of treated mangroves is actually better for the surrounding environment than removal,” he continued. “It was in large part due to the concerns of the Clean Water Branch that Malama decided not to cut down any of the larger mangrove trees at Pohoiki.”
In an email to Environment Hawai`i, Kobsa said that for her, “the main issue is that removal of the dead mangroves basically requires a clearcut. So, in addition to causing disturbance of sediment, it would require removing all interspersed native trees as well, which would create an unsightly and unstable situation and make it harder for the ecosystem to return to its natural state. Even with our replanting, it would be more likely that the shorelines would become dominated by other invasives.”
Singer also alleged that Malama O Puna was violating pesticide laws in the manner in which it applied the herbicide. The Habitat product label, he said, “does not specifically list mangroves as an aquatic species that can be controlled with this product. Therefore, using Habitat to poison mangroves is use of this pesticide in a manner inconsistent with its label.” He also argued that using the product in what he deemed to be “sensitive shoreline conservation sites” also constituted a label violation.
Malama O Puna rebutted this with a declaration of James Leary, assistant specialist for invasive weed management at the University of Hawai`i’s Cooperative Extension Service. The fact that mangroves weren’t specifically called out on the pesticide label, Leary said, means little. Singer’s argument “is a misinterpretation of the label and goes against conventional understanding among herbicide applicators of how to read an herbicide label…. It is often misconstrued that if a plant is not listed … that it is unlawful to target that species. Instead, it is only unlawful to treat a species if it is specifically prohibited in the label.” Apart from the targeted species, he continued, the other main consideration in determining compliance with label instructions is the application site. “Mangrove in Hawai`i would be a marine site,” he pointed out, “which is in fact listed in the label.”
Leary praised the practice of injecting herbicide into individual trees as “a very discrete and efficient technique relative to other conventional application methods.” (Aside from its efficiency, use of herbicides to remove mangroves is far more economical than other removal methods, such as by hand or with chain saws. According to Kobsa, mechanical removal in Hawai`i has cost between $37,000 and $175,000 per acre. By using a shoreline-approved herbicide to kill the mangroves, she has written, the cost can be lowered to just $2,000 per acre, potentially putting mangrove eradication within reach at many more locations.)
The Noxious Weed List
One of the arguments raised by Singer had to do with the fact that the red mangrove does not appear on the state Department of Agriculture’s noxious weed list. The DLNR rules for Conservation District uses allow removal of listed noxious plants, Singer wrote, but with mangrove not being on that list, “the exemption from the need for a permit was unjustified for these projects,” he wrote. And, “since the exemption for needing a permit was unjustified, therefore the exemption from needing an Environmental Assessment based on this erroneous conclusion was also unjustified.” DLNR rules actually are more ambiguous, stating that “noxious plants are defined in Chapter 152 HRS and [Hawai`i Administrative Rules] Chapter 4-68, Subtitle 6,” the noxious weed rule (including the Board-of-Agriculture-approved list of weeds).
The court dismissed Singer’s claim of a violation of HEPA (the Hawai`i Environmental Protection Act, Chapter 343) as untimely, putting paid to further discussion of whether an environmental assessment should have been required. In any case, Yip argued, the fact that a species does not appear on the list means little. “Mangroves do not need to be officially designated on the noxious weed list to qualify as a target pest to be eradicated…. Narrowly focusing on whether the red mangrove is on the list … ignores the broader policy objectives as expressed in legislation.” In Chapter 152 of Hawai`i Revised Statutes, Yip noted, a “noxious weed” is defined as “any plant species which is, or which may likely become, injurious, harmful, or deleterious to the agricultural, horticultural, aquacultural, or livestock industry of the state and to forest and recreational areas and conservation districts of the state, as determined and designated by the department [of agriculture] from time to time.” The list, he continued, “was last updated on June 18 1992. The presence or absence of a harmful species on a list that has not been updated for two decades is not the final determinant of the state’s authority to control a species, however. It cannot be the case that agencies are powerless to facilitate eradication of an invasive species … simply because the DOA has not placed the species on the noxious weed list.”
In arguing that the mangrove removals might threaten endangered species, Singer cited concerns of the National Park Service over the use of pesticides at Alula Bay, near Kaloko-Honokohau National Historical Park. In comments on the project, the service had expressed concerns over possible impacts to a shrimp and the orangeback damselfly, both candidate endangered species.
In opposition to this, the defendant
s noted that no work had begun near Park Service lands. What’s more, Kobsa pointed out that some studies have indicated mangroves themselves threaten some of the very species called out by Singer. Kobsa attached to her declaration an article by James Allen, “Mangroves as Alien Species: The Case of Hawai`i,” published in 1998. Allen notes that “the most direct impact [of mangroves] … is the invasion of foraging and nesting habitat. None of the [waterbird] species will forage or nest in mangroves, so many areas where mangroves are established are therefore existing or potential habitat lost to the waterbirds…. Mangroves are known to provide shelter for some waterbird predators…. The native black-crowned night herons and introduced cattle egrets, both of which prey on other waterbird chicks, nest in mangroves…. The Hawaiian stilt is probably affected the most. Its optimal foraging habitat is on shallowly flooded marshlands and exposed tidal flats, sites ideal for mangrove colonization.”
Last September, Judge Greg Nakamura issued two orders. The first dismissed the motions for summary judgment and injunctive relief filed by Singer, who since August had been represented by Waimea attorney Margaret Wille. The second granted in part and denied in part Malama O Puna’s cross motion for summary judgment or for partial summary judgment. Nakamura dismissed the allegation of a HEPA violation, agreeing with Malama that it was untimely. He also dismissed the charge that the state’s pesticide law had been violated, saying that Malama O Puna had “satisfied its burden of producing evidence showing the absence of a violation.”
On the matter of alleged violations of the state’s clean water and endangered-species laws, however, Nakamura allowed the case to proceed, agreeing with Singer that both these laws allowed for a “private right of action.”
By December, the Hawai`i Tourism Authority and the DLNR had settled with Singer. The agreement, which runs to just two pages, states in the “whereas” clauses that the DLNR had allowed “this herbicide-based mangrove eradication program to be undertaken at the project locations (subject to removal of the poisoned dead mangroves from the area)” and that HTA had financed “this eradication program at one site, Wai `Opae (but likewise expected the dead poisoned mangroves to be removed from the shoreline area).” Apart from those concessions – which Malama continues to contest – the settlement gave Singer very little.
In terms of state actions, the settlement calls only for the state to “remove signage requesting visitors to kill and remove mangrove propagules” if the signs are on state land. For signs paid for with state funds that are on private land, the attorney general’s office agreed to request permission to remove them. Singer himself agreed to take the signs down, “upon written request” from the state.
According to Kobsa, there was just one sign, which was on land owned by the Kapoho Vacationland Community Association. The sign, she said, was stolen before the state asked for its removal. Within a few weeks, Singer’s attorney delivered the sign to the state Land Division agent in Hilo, who then called Malama O Puna. “We got it from them and took it back to the community association…. The community association thought it was their sign to keep, since it was on their property,” she said.
By May, the remaining defendants – the county and Malama O Puna – were nearing a settlement agreement as well. That three-page agreement, which was signed in mid-May, forbids Malama O Puna from posting any signs in the future requesting that visitors kill and remove mangrove propagules. It also prohibits Malama O Puna from using herbicide at Alula Bay (no pesticide use was planned there, in any event) and bars the county from allowing their use at the same site.
The county “may approve future mangrove eradication projects but agrees that before approving such a project, it shall give due consideration of whether an environmental assessment under HEPA is necessary.” (The county had, in fact, signed the requisite exemption determinations in issuing the SMA minor permits, which legally satisfies the “due consideration” requirement.)
Finally, the settlement agreement contains a paragraph prohibiting any of the parties from making disparaging statements about the others.
Volume 22, Number 1 — July 2011