The following letter has been sent to Daniel Bent, the U.S. Attorney in Honolulu. Environment Hawai`i was provided a copy by the author. It has been slightly edited for style and length.
Recently I learned that the U.S. Fish & Wildlife Service has obtained information concerning knowing and continuing violations of the Endangered Species Act on the Big Island of Hawai`i. While your office should consult with FWS for details, I understand that by virtue of their commercial logging activities, the trustees of the Bishop Estate have taken and continue to take the endangered plant Hawaiian vetch (Vicia menziesii) at Keauhou Ranch, a 23,000-acre ranch near Hilo.
FWS lists Hawaiian vetch as endangered which, by operation of law, is endangered under the laws of the state of Hawai`i.
Commercial logging activities at Keauhou Ranch that uproot, destroy or injure endangered plants are a violation of state and federal law. The trustees could apply for an incidental taking permit under §10 of the ESA that might allow them to continue to engage in commercial logging activities, but I understand that they have not done so. Keauhou Ranch also provides habitat for several endangered forest birds, including the Hawai`i creeper (Oreomystis mana), the `akiapola`au (Hemignathus munroi), the `akepa (Loxops coccineus coccineus), and possibly the very rare `o`u (Psittirostra psittacea). At upper elevations the ranch contains scrub habitat essential to the nene (Nesochen sandvichensis). Your investigation of this matter should encompass possible takings of these species. The logging of trees that contain active nests of these endangered species would surely kill young birds and eggs and possibly adults.
The fact that logging uproots, destroys or injures endangered plants and therefore violates the ESA has not escaped the trustees’ notice. The trustees, among others, attempted but failed to persuade the Hawai`i State Legislature to amend the state of Hawai`i’s endangered species act during 1991 to exclude activities such as commercial logging. The trustees have not been “blind-sided” by the ESA. To the contrary, the trustees know the requirements of the ESA and the state act, are aware of the potential civil and criminal penalties, and have elected to scoff at the law.
Hawai`i is considered by many to be this nation’s capital of endangered species. The U.S. Attorney’s office in Hawai`i has on occasion prosecuted violations of the ESA. For example, in a widely reported case a few years ago, an indigent man was convicted of violating the ESA when he killed an endangered monk seal on Kaua`i. I understand that the trustees are among the most wealthy and powerful people in the state of Hawai`i. They award themselves annual fees of up to $1 million. The trustees have friends among those who hold the highest state and federal offices in Hawai`i. I hope that the U.S. Attorney’s office extends the enforcement of federal environmental laws such as the ESA beyond indigents to include even wealthy and politically powerful individuals. I would note that both Senators Akaka and Inouye, who receive generous political contributions from the trustees, voted to extend the ESA’s protection to plants.
I have been concerned for some time that FWS’ timid enforcement of the ESA in Hawai`i runs counter to administration policy. My impression that the federal government pulls its punches in Hawai`i is corroborated by an article that appeared in a publication by the American Bar Association’s Section on Natural Resources, Energy, and Environmental Law. It states that FWS recently wrote to city and county officials in California that they would violate the Endangered Species Act and be subject to its civil and criminal penalties if they were to allow development within the habitats of listed species.
FWS has sent no such letters to the members of the State of Hawai`i Land Use Commission or the State of Hawai`i Board of Land and Natural Resources. This is curious, since both Hawai`i and California are administered by the identical FWS regional office in Portland. Moreover, more than half of the privately held conservation land in Hawai`i is owned by only ten landowners. A cost-effective means of helping to ensure compliance with the ESA in Hawai`i would be to send advisory letters setting forth the civil and criminal penalties of the ESA to major landowners in Hawai`i.
Craig S. Harrison Attorney Washington, D.C.
Editor’s note: The Fish and Wildlife Service at one time had hoped to purchase at least portions of the Keauhou Ranch for wildlife conservation purposes. However, the trustees “have decided not to have further discussion regarding the acquisition or use” of the ranch or another area under consideration, the so-called Kilauea Forest, according to a letter January 16, 1992, from the regional director of the Fish and Wildlife Service to the International Council for Bird Preservation.
Quoting further from that letter: “While the Estate has hinted that sweeping land use reforms, including koa reforestation in large tracts of the Estate’s Hawai`i lands, are forthcoming, we have seen no evidence that suggests the Estate intends to protect endangered species and essential habitats.
“The Service’s objective for these lands remains unchanged, that is, the establishment of a national wildlife refuge to conserve the genetic diversity of native Hawaiian forest birds and plants. In light of the lack of progress through open talks with the Estate, we have embarked upon a different course of action which we hope will ultimately lead to the same objective. A revised final environmental assessment which identifies acquisition of both Kilauea Forest and Keauhou Ranch as the preferred alternative is being prepared and will be published this spring. The Service has briefed the Chairperson of the State Board of Land and Natural Resources of our intentions and of our concern for the continuing unauthorized incidental taking of endangered Vicia plants at Keauhou by commercial logging activities.”
Volume 2, Number 9 March 1992