Helping or Hurting Birds in Wake of Botulism Outbreak?
As a 30-year career biologist with a degree from college in Biological Sciences and an expert on the Endangered Species Act (ESA), I am appalled that the Department of Land and Natural Resources and U.S. Fish and Wildlife Service would ask the public in Hanalei to violate this federal law openly, of which they did in a press release they sent recently to several Hawaiian newspapers about Avian Botulism in the Hanalei Wetland.
A study was done by the USGS infectious disease expert early in 2012 on over 300 endangered birds that died in the Hanalei wetland. They released a statement claiming the birds died of botulism! Some of the birds in Hanalei are “critically endangered” which means there are very few left on earth. A report like this should have made front cover news world wide, but was just now reported to the public long after the event happened. I wonder why? If someone found 300 endangered whales dead in Kauai it would have made the news!
The DLNR asked the public to remove any dead or dying endangered bird from the wetland! I taught a class on Endangered Species Law to government officials for many years and I learned about this law years ago from the very attorney who wrote the law in 1972, Craig Potter. I know this law inside and out including many Supreme Court cases. I owned the largest endangered species reptile captive breeding zoo in the world at the time and I took a lengthy course put on by Craig Potter and the US Fish and Wildlife Service about the Endangered Species Act.
It is a federal crime to TAKE any endangered species from its natural habitat without the proper federal permit. The ESA 3(19) defines “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to engage in such conduct”. There are five endangered birds that live in the Hanalei wetland.
Not even the President of the United States can violate this law unless he declares a national emergency. State Biologist cannot even collect a dead endangered bird in the Hanalei wetland without a “take” permit from the federal US Fish and Wildlife Service. Many people have gone to jail for taking endangered birds and the DLNR previously LOST a Supreme Court Case over violating the ESA. If you find a dead green sea turtle on the beach you cannot legally bring it home and mount the shell on your wall. You also cannot remove an endangered bird, live, sick or dead from the environment. Even the U.S. Fish and Wildlife Service must complete proper studies to remove endangered birds from the environment!
In the USA, endangered species are owned by the public, not the government. The ESA is the “peoples law”. It is not a U.S. Fish and Wildlife Service law. It was put into effect by Congress to protect species and their habitat, and the public can sue the USFWS, DLNR, EPA or any other agency for violating the ESA or not enforcing the ESA! This happens all the time. Wildlife groups like the Sierra Club often sue the Service for violating, or not enforcing the ESA.
Even a restoration project of the Hanalei River needs a federal Habitat Conservation Plan (HCP) and an Incidental Take Permit to work in an area with endangered species. The taro farmers on the other hand can fall under a clause in the law called The Safe Harbor Act so they will not violate the ESA by doing normal farming practices in an area where endangered species live. You, me, the governor, the local nonprofits, land owners and everyone else are violating the ESA if we so much as attempt to touch any endangered bird or have the “likelihood” of disturbing its nesting, breeding, feeding or behaviour. This is Supreme Court and Congressional wording, not mine. I have been in court over 60 times working with this law.
What bothers me the most is that the DLNR and their advisers seems to have a total disregard for following the wildlife laws that have been in effect in Hanalei for over 30 years! These laws are good as they cause studies to happen from the top of the mountain to the reefs in the bay. Without these studies huge environmental blunders happen, like killing over 1,000 corals in Hanalei Bay all caught on HD video covered in river mud! The “Congressional intent” of the ESA is much like the old Hawaiian way of studying the effects on the environment caused by any human alteration. What someone does up river can effect the sea, marine life and reefs. By ignoring the ESA, which is standard behaviour in Kauai, when only localized studies are done, the effects of those studies cause all kinds of environmental problems down river or in the sea.
One restoration project in the Hanalei wetland recently done without ANY federal ESA permit, even though it was in “Critical Habitat” for five endangered birds, caused a mud release into the bay which killed some corals. I took HD video of this event. If the ESA was followed and enforced, then a study of the bay would have been conducted ahead of time, and the possible negative effects of the restoration would have been understood. Biologists then could have monitored the project before the reef was killed! It is not OK to save a creek and at the same time kill a reef! For over 2,000 years this principal has been understood by the Hawaiians, but recently it has been ignored with some very damaging results!
One other VERY disturbing detail about the press release is that 300 birds died! Botulism in birds may not directly effect people but what causes the botulism can make humans sick. Dead buffalo floating in the river after the rains can cause botulism in birds and can also be the cause of the many skin infections people get while playing in the river and bay. We need more studies on this and we need the DLNR and DOH to come clean and tell the public what they know about the health of the Hanalei River and Bay. Dead buffalo in the river can easily be considered a “take” under the ESA laws. Just go to the website of the EPA or USFWS and read the Endangered Species Act!
There are over 100 buffalo being raised in the Hanalei wetland and they are a danger to all of the endangered species including humans! The person who raises the buffalo on his large wetland property has also raised the level of the property to dry it out. This is an obvious violation of the ESA and I have reported this with video for many years, to the USFWS, NOAA, DLNR, and EPA. Not one agency will enforce the ESA on this person, but 300 birds died due to botulism and it is a well known fact that during the rain, these buffalo die and end up in the river and ponds where the endangered birds feed!
For some unknown reason to me the Endangered Species Act has been totally ignored in Kauai, even though myself and others have a massive amount of data, pictures and HD video of the ongoing violations to this good law that has been in effect for over 30 years! Most of all the Hawaiians have taken care of their environment for over 2,000 years with laws (kapu) that are very similar to the current ESA! They studied the environment from the top of the mountain to the reef before altering the river, wetland and bay. They farmed and fished to feed the people and they never destroyed the land and sea that fed them and gave them life. Today special interest groups and political egos really need to wake up and either enforce the ESA or go back to the laws that work so well for thousands of years. They are both one in the same.
About the author: Terry Lilley lives in Hanalei and is doing a lengthy underwater coral reef and invasive species video documentation along with the University of Hawaii.
