Posted 01/24/2013
The Hawai`i Department of Transportation has been notified by the U.S. Department of Justice that it may soon be indicted for criminal violations of the federal Migratory Bird Treaty Act and the Endangered Species Act.
On December 20, DOJ attorneys informed the Department of Transportation that its lights are causing unlawful takes of birds, sea turtles, and moths protected by the two laws. According to a memo to the state’s chief procurement officer from state attorneys, “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.”
The DOJ has told the state that it can enter into a plea agreement or face a criminal trial.
The Attorney General’s office, representing the DOT, filed a request with the state procurement office on January 22, seeking authority to engage the services of a law firm with experience in this area at a cost of up to $150,000, without going through the competitive bidding process. (To read the AG’s memo, click here.)
In the memo attached to the exemption request, the AG’s office indicates it has already zeroed in on a Boston law firm, Bingham McCutchen, to represent the state. The firm “has 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 states. “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.”
The memo notes that in 2010, “the DOJ successfully prosecuted the County of Kaua`i and the Kaua`i Island Utility Coop for violating the MBTA. The prosecutions resulted in plea agreements and both defendants being placed under federal probation.”
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