Appeals court hands down victory in battle against scourge killing endangered native birds

Hawaiʻi recently won a victory in its battle against a deadly scourge running rampant among native bird populations throughout the islands.

The Intermediate Court of Appeals ruled in favor of the Hawaiʻi Department of Land and Natural Resources and American Bird Conservancy by affirming an Environmental Court ruling that the final environmental assessment for an incompatible insect technique project to control mosquito-born avian malaria in East Maui was sufficient.

Avian malaria already led to the extinction of many native birds and is responsible for the near total decimation of several remaining species of Hawaiian honeycreepers.

“This is an emotional issue for people,” said Hawaiʻi Board of Land and Natural Resources Chairwoman Dawn Chang. “These birds are part of our cultural and ecological heritage, and I think everyone wants to see them protected in the right way.”

Center for Biological Diversity Hawai‘i director and staff attorney Maxx Phillips said the court’s decision reinforces what environmentalists and island residents have known all along: “Hawai‘i is on solid legal and scientific ground in its effort to save native forest birds from extinction.”

The center represented the state Land Department and American Bird Conservancy in the appeal.

“The courts have once again made clear that we won’t stand by while avian malaria pushes these irreplaceable species to the brink,” said Phillips. “Our manu deserve a fighting chance.”

Members of the state Land Board in March 2023 approved the final environmental assessment for incompatible insect technique implementation in East Maui and found it had no significant impact.

Plaintiff Hawai‘i Unites filed a claim in Environmental Court challenging the board’s acceptance of the assessment and issuance of a finding of no significant impact.

A final judgment was issued Feb. 6, 2024, by 1st Circuit Environmental Court declaring the state Land Department’s final environmental assessment and finding of no significant impact satisfied statutory requirements.

Hawaiʻi Unites appealed the judgment, arguing in part that the Environmental Court applied the wrong standard to its claim and erred in finding summary judgment in favor of the state.

The Intermediate Court of Appeals ruled that the Environmental Court applied the proper standard for judicial review of a final environmental assessment and the state Land Board’s acceptance of the assessment and issuance of the finding of no significant impact was supported by substantial evidence in the record.

It went on to provide that the Environmental Court was correct in granting the state’s motion for summary judgment on that basis.

Hawai’i Deputy Attorneys General Miranda Steed and Danica Swenson represented the Hawaiʻi Department of Land and Natural Resources in the Maui case.

“We are thankful for the [Intermediate Court of Appeals’] decision affirming the thorough environmental review process for this crucial project,” said Steed. “We remain hopeful that future generations will see native honeycreepers in the forest and not only in museums.”

The appeals court affirmed the Environmental Court’s decision but sent the matter back to the Environmental Court for the state Land Board to amend the final environmental assessment to include an appendix that complies with Hawai‘i administrative rules.

This technical correction does not affect the ongoing incompatible insect technique project.

“Our defense was evidence-based and supported by the scientific analysis in the [final environmental assessment],” said Swenson. “We appreciate the [Intermediate Court of Appeals] reinforcing the importance of the Hawai‘i rules of evidence in this decision.”

Kaua‘i Forest Bird Recovery Project on Feb. 13 conducted its first release of male mosquitoes into a state forest reserve on the Garden Isle’s vast Alakaʻi Plateau in the battle against avian malaria and their efforts to save the birds the often-deadly disease is essentially eradicating.

It was the first time the incompatible insect technique was deployed on Kaua‘i in an attempt to drastically reduce the number of malaria-carrying mosquitoes.

Females are the only mosquitoes that bite — needing blood from humans or animals to develop their eggs — and therefore spread disease. Males don’t bite and get energy from feeding on plant juices such as nectar.

The released males are reproductively incompatible with female mosquitoes. This mosquito “birth control” is aimed at suppressing mosquito populations to combat avaian malaria like it has been successfully used around the world to fight human malaria.

No matter which side of the appeal court’s decision they stand, Chang said the state Land Department appreciates everyone who provided their manaʻo, or thoughts and opinion, on the topic.

“Taking no action will put these valuable manu, or birds, at further risk of extinction,” she added.