On March 24, 2010, four conservation groups filed a complaint against Kauai’s electric utility, Kauai Island Utility Co-op (“KIUC”), alleging that KIUC’s power lines, utility facilities, and street lights “take” threatened Newell’s Townsend’s shearwaters (Puffinus Auricularis Newelli) (“Newell’s shearwaters”) and/or endangered Hawaiian petrels in violation of the Endangered Species Act (“ESA”). The civil complaint, filed in the U.S. District Court for the District of Hawaii, alleges that KIUC has failed to secure the necessary ESA incidental take permits and, despite years of promises, has failed to implement protective measures that are needed to prevent the “take” of the listed birds.

On May 19, 2010, a federal grand jury indicted KIUC for allegedly taking Newell’s shearwater in violation of the ESA, and for allegedly taking both Newell’s shearwater and Laysan albatross (Diomedea immutabilis) in violation of the Migratory Bird Treaty Act (“MBTA”). According to the indictment, which alleged criminal violations of the ESA and MBTA, KIUC failed to secure the necessary incidental take coverage and to fully mitigate for anticipated takings despite years of negotiations with the U.S. Fish and Wildlife Service to obtain an incidental take permit. The indictment was filed in the U.S. District Court for the District of Hawaii.

These cases illustrate two points relevant to any industry dealing with potential impacts to species protected by the ESA or MBTA. First is that the filing of a citizen suit under the ESA, as occurred here, often raises the profile of a situation and can lead to pressure on the U.S. Fish and Wildlife Service to exercise its independent authorities under the ESA and MBTA. The MBTA does not allow citizen suits, but the filing of a civil ESA citizen suit can lead to criminal charges being brought by the United States under both the ESA and the MBTA. Second, these cases demonstrate that there is a threshold beyond which the United States will invoke its authority to seek criminal indictments under these laws. The allegations in both cases acknowledge that KIUC had engaged in discussions and agreements with the U.S. Fish and Wildlife Service about obtaining permits, but when progress was not made on the agreed to timelines, the United States invoked its most severe authority. This should serve to remind everyone that ignoring risks and liability under the ESA and MBTA can have serious consequences.