Saturday, December 4, 2010

Musings: Kicking and Screaming

I drove up to the North Shore yesterday, past waterfalls and impossibly green landscapes and muddy rivers swollen to the very tops of their banks. It was such an awesome testament to the beauty and power of nature, which quickly set to work drying things out with the sun and wind that followed the storm.

The usual storm of misinformed and asinine comments followed The Garden Island’s report on the KIUC guilty plea agreement regarding the killing of Newell’s shearwaters, a subject I covered in my KKCR radio show on Thursday. It’s sad to see some of the readers struggling to make sense of the issue armed only with Paul Curtis’ “reporting,” and almost painful to be confronted with comments left by people who apparently never learned it’s best to shut up when you don’t know WTF you’re talking about.

But what’s really tragic is seeing people take the dead-end stance of “it costs too much to protect the environment, so screw it.” One of the big lies of the capitalist system is the way it sells goods and services without taking into account the full ecological costs. That keeps prices artificially low, thus encouraging more consumption of energy and stuff. But as we all know, much as we pretend we don’t, there is no free lunch. And oh how people howl and moan when they’re faced with the bill!

In this case, it’s KIUC — or rather, the ratepayers — who will pay the bill for the utility’s 15 years of foot dragging, even as it claimed it has been working so diligently to save the birds. Just last May, when the original criminal indictment came down, KIUC issued a press release in which it claimed:

“KIUC has not violated the criminal provisions of either the ESA [Endangered Species Act] or the MBTA [Migratory Bird Treaty Act] and will now, as a result of the Justice Department’s precipitous and ill-conceived decision to file criminal charges, fight this matter in the United States District Court before a jury of Hawai‘i’s residents who, unlike the Justice Department, will treat KIUC fairly and recognize that the cooperative — owned by the residents of Kaua‘i — is doing everything reasonably possible to protect the seabirds,” said William Goodman, counsel for KIUC.

Then, on the eve of its criminal trial, it entered into a plea agreement in which it admitted that it was indeed guilty of violating the ESA and had not been doing everything reasonably possible to protect the rare native seabirds. To quote from the plea agreement:

No later than November 1, 2002, Defendant knew that power lines owned, operated and maintained by Defendant were located in such a way that Newell’s Shearwaters could collide with power lines during their flights between the mountain burrows and the sea. Defendant further knew that any such collision could kill, wound, and/or otherwise harm or harass Newell’s shearwaters, including injuring it and/or causing it to fall to the ground where it may be killed.

d. No later than November 1, 2002, Defendant knew that young Newell’s shearwaters are attracted to bright lights, and that such attraction often causes them to circle the lights, including but not limited to lights operated by the Defendant. This attraction thus may cause the birds to collide into power lines or other obstacles as they circle, or to fall to the ground from exhaustion. Defendant also was aware that modifying or shielding lights so that they shine only downward significantly reduces this attraction and related takings. Defendant shielded all street lights under its control by June 2003 pursuant to an agreement with the U.S. Fish and Wildlife Service requiring it to do so, but did not shield lights at its Port Allen facility at that time.

e. Between approximately June 2005 and the present, at least fourteen Newell’s shearwaters were found downed near power lines owned, operated and maintained by Defendant near Kealia Beach and Donkey Beach. Subsequent necropsies on some of these birds concluded the birds died due to blunt force trauma consistent with a collision with a power line or other solid object.

f. Between approximately June 2005 and the present, at least four Newell’s shearwaters were found downed near power lines owned, operated and maintained by Defendant in the Wailua River Valley.

g. Between approximately June 2005 and the present, at least ten additional Newell’s shearwaters were found downed near power lines owned, operated and maintained by Defendant elsewhere on Kauai, as referenced in the Indictment. Subsequent necropsies on some of these birds concluded the birds died due to blunt force trauma consistent with a collision with a power line or other solid object. In at least one instance an eyewitness observed a Newell’s Shearwater strike a power line near Hanapepe Stadium. In another instance before 2005, other eyewitnesses observed a Newell’s Shearwater strike a power line in the town of Kilauea.

h. Between approximately October 17, 2006, and October 25, 2006, nine Newell’s shearwaters were found on the ground at or near the Defendant’s Port Allen facility. Although Defendant modified its lights in 2007, between approximately October 29, 2008, and October 29, 2009, at least an additional six Newell’s shearwaters were found on the ground at or near the Defendant’s Port Allen facility.

i. At no time relevant to the Indictment did the Defendant have a permit authorizing any of the takings described above.


It’s unfortunate that KIUC didn’t see the light a little earlier and save us all the substantial costs of preparing for a trial. And it’s really unfortunate that KIUC, which bought Kauai Electric with full knowledge that its lights and lines were killing birds and had been subject to prior litigation on this matter, didn’t get on it a bit earlier and save us all the angst and expense of seeing our Cooperative dragged, kicking and screaming and proclaiming its virtue, all the way to the federal courthouse.

One can only hope it's not too late for the `A`o.

9 comments:

Anonymous said...

1. A typical Oahu law firm move - bill the client all the way and only tell them to settle after the lawyers get paid. KIUC fell for same trap as the County often does.

2. I read the indictment in its entirety. KIUC was despicable - you only printed the mild stuff.

Good to watchdog this very shady company.

Anonymous said...

The comment section of TGI is like that. I don't waste my time reading it because the ignorant, hateful comments put me in a pissy mood.

Continue your work to educate about the 'A'o. There are those you touch and make a difference. Mahalo for the update on the latest news.

As Kaumualii Hwy gets torn up between Lihue and the tree tunnel wouldn't this be an ideal time to put utility poles underground? Seems like a no brainer since they are ripping up all vegetation in the way and grading and digging up the earth for pipes. Now would be the time.

Casey said...

It sure is hard to put a price on ecological costs. The problem is made harder by human psychology. Since environmental damage takes time to build up, it is easy to ignore. Economists call this "hyperbolic discounting":
http://en.wikipedia.org/wiki/Hyperbolic_discounting

Anonymous said...

When you were discussing the population decline in the shearwaters over the past 20 years Bill made it sound like they were all from the powerlines.
What do we know about the natural attrition when they are off island?
Be it from natural predators or ingesting plastic. Their are a lot of unknowns in that population decline.
Undergrounding the powerlines may not help that much. Maybe better to cleanup the sea plastic.

Anonymous said...

yes, THERE are.

Joan Conrow said...

Plastics do not appear to be an issue for Newell's -- that is more a problem for albatross, which feed closer to the surface of the water.

As I mentioned in my Honolulu Weekly article, the `A`o are facing a complexity of threats, including habitat loss, predation, light attraction, power lines and unknown factors at sea.

When trying to restore a rare species, you work on reducing the known threats that are under your control, and that includes undergrounding and reconfiguring lines in known flyway, shielding lights and controlling predators in nesting habitat. KIUC, the county and the St. Regis all had to give money toward habitat restoration and predator control programs, as well as work on their lights and lines.

Anonymous said...

Reducing known threats! Come-on Joan! One begins with the "major threats" and proceeds to the "minor" threats. The shear-waters are starving to death due to habitat loss. That's the dirty little secret that is under our control. Humankind is ignoring this problem and going after a minor threat. Seems insane to treat people for minor cuts and abrasions when the entire house is on fire. Stop habitat destruction first, or at least at the same time you fix what are minor reasons in the large scheme of things. Finally their are very few ratepayers to KIUC as almost everyone is a "member" and a member is the owner and the owners are responsible for the actions of employees. That is why corporations exist to protec bird killers from prison time. Try acting like owners and keep your employees in check because if you don't you may avoid jail time through a legal fiction called a corporation, but you still will write a check to pay your bill imposed by the Feds who allow major habitat destruction to occur while they go after you.

Joan Conrow said...

The shear-waters are starving to death due to habitat loss.

Habitat loss affects their mountain nesting areas, not their feeding grounds, which is the ocean.

Of course it's important to work on habitat restoration, and as I mentioned, due to the civil and criminal actions against KIUC, the county and the St. Regis, funding has been provided for habitat restoration. Other entities involved in killing or harming the birds also will be required to fund such programs when they enter into the Habitat Conservation Plan. The state and federal governments contribute funding as well.

Anonymous said...

"Habitat loss affects their mountain nesting areas, not their feeding grounds, which is the ocean."

Excuse me! Habitat is different from occupy? To me if a species feeds in the ocean then they occupy it. Your narrow definition of habitat would have people's habatit being their bedroom/bathroom but now the kitchen/dining room.

In any case the oceans are near gone and without food who cares where one sleeps and reproduces, and those who say buck da furds and bucking themselves. Good buck wid dat!