C O U N T Y O F K A U A ‘ I

OFFICE OF THE COUNTY ATTORNEY

NEWS RELEASEFor Immediate Release: September 9, 2010

ALFRED CASTILLO, COUNTY ATTORNEYTel (808) 241-4930Fax (808) 241-6319

County enters into plea agreement with Department of Justice

LĪHU'E – The County of Kaua'i today entered into a plea agreement with the U.S.

Department of Justice after agreeing to be charged with a single misdemeanor count of violating

the Migratory Bird Treaty Act (MBTA).

Under the MBTA Act, taking, killing or possessing migratory birds such as Newell’s

shearwaters is deemed unlawful.

County Attorney Alfred Castillo entered into the plea agreement on behalf of the County

in federal court in Honolulu this afternoon.

By pleading guilty to the single misdemeanor count, the County waived its right to a trial,

which could have resulted in the County being subjected to the statutory maximum of $25,000

for each and every taking of a bird listed under the Endangered Species Act (ESA), as well as a

statutory maximum of $15,000 for each and every past taking of a bird listed under the MBTA.

With a minimum of 18 bird deaths documented by the Justice Department, the County

would have faced a maximum fine of $450,000 for ESA violations and a $270,000 fine for MBTA

violations along with the prospect of up to five years probation.

Thus, the County chose to enter into a plea agreement with the Justice Department.

BERNARD P. CARVALHO, JR.Mayor

GARY K. HEUAdministrative Assistant

“We appreciate the cooperation of the Department of Justice in reaching this agreement,

and feel that the measures that will be taken will enable us to better allow public use of our

facilities while providing proper protection for the birds,” said Mayor Bernard Carvalho, Jr.

In its agreement, the County acknowledged that over the last five years, a number of

Newell’s shearwaters were killed, or otherwise taken, as a result of the lighting at county

facilities. Such takings occurred on: Oct. 14, 19, and 28, 2005; Oct. 18, 20 and 21, 2006; Oct.

18 and 19, 2007, and Oct. 23, 2007.

The recommended penalty for the offense includes a $15,000 fine and 30 months

probation with the follow conditions of probation:

County will undertake corrective measures set forth in a special agreement. As part of

the agreement, the County will conduct and complete an audit of all County facilities and

will categorize each based on the amount of lighting the facility uses. For each of these

categories, the County will create a plan for minimization of the taking of seabirds during

the fledgling season, along with a plan for monitoring the success of the measures

taken.

County will create and maintain records of dead and injured or sick birds that are

protected by the Endangered Species Act and/or MBTA that are found on its property or

its recreational facilities.

County will notify the U.S. Fish and Wildlife Service of any such mortalities, injuries, or

sickness within 24 hours of becoming aware of the event, including the apparent

circumstances.

The County must also establish an escrow account by Sept. 2011 and 2012 in the

amount of $100,000 or an amount equal to the number of takings recorded at such

facilities in the previous year multiplied by $10,000, whichever is less.

County will donate $180,000 to the National Fish and Wildlife Foundation, which will be

used to benefit and increase the population of Newell’s shearwaters on Kaua'i as

community service and restitution for past takings.

County will donate $30,000 to the Kaua'i Humane Society for the express purpose of

augmenting its Save Our Shearwater program also as community service and restitution

for past takings.

Based on the Court’s acceptance of the plea agreement, the Environmental Crimes

Section of the U.S. Department of Justice, Environment and Natural Resources Division, will

decline to prosecute the County for any additional criminal violations involving migratory bird

deaths related to the operation of lights at county facilities up until the date of execution of the

agreement.

If the County complies with the terms of the plea agreement for a period of 30 months or

until the island-wide HCP is completed, whichever comes first, the Environmental Crimes

Section would agree to exercise its discretionary authority not to prosecute the County for any

additional taking of migratory bird deaths that may occur during its probationary period.

The agreement also allows the County to seek early termination of the agreement if it

obtains an incidental take permit before the probationary period ends and if the County is in

compliance with all conditions of the probation.

In recognition of the cultural and ecological importance of Hawai’i’s native birds and the

significance of night time football games in our island community, the County has negotiated

with the Department of Justice to allow the possible return of night games.

Under the terms of probation, the County may provide its stadiums for night time football

on certain days, and under certain conditions.

To mitigate possible impacts these night games may have on our native birds, the

County must establish and fund an escrow account this fall to cover any bird takes that result in

death or serious injury.

Similar provisions are established for fall 2011 and 2012, including the retrofitting of

lights at county football stadiums.

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