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.