Volume 19, Number 4 October 2008

Price: $5.00

Deadly Decibels Navy’s Exercises at Heart eep-diving whales are remarkable Of Case Set for Hearing Dcreatures, with highly evolved abilities to locate prey and navigate in the n early February 2007, the U.S. Navy Register notice. sunless canyons of the ocean. As the announced it had prepared an environ- On January 27, 2007, the same date that manmade sources of ocean noise I mental assessment for a two-year series of 12 the FONSI was signed, the National Ma- proliferate, however, these cryptic whales undersea warfare exercises in waters around rine Fisheries Service, which has jurisdic- are in increasing danger. Hawai‘i. The notice of the EA was accom- tion over marine mammals, gave the Navy So far, the Navy, with the National panied by a finding that the exercises, in- permission to harass, or “take,” such ani- Marine Fisheries Service at its side, has volving the use of high-intensity mid-fre- mals (including endangered humpback, balked at accepting limits on its training quency active sonar, would have no sperm, fin, and sei whales) up to 11,299 that would afford reasonable protection significant impact on the environment. times a year for each of the two years the for the whales. That notice, published in the Federal exercises would run – the exact number of Whether it will be constrained to Register of February 2, 2007, shed public animals that the Navy had predicted would accept more stringent measures or be free light for the first time on the Navy’s planned be affected in its EA. The Navy’s actions, to do as it pleases is the issue at the heart exercises. Although the Navy has to follow NMFS determined in an accompanying bio- of several complex lawsuits, including two the National Environmental Policy Act logical opinion, were “not likely to jeopar- to be heard later this month – one before when it comes to disclosure of environmen- dize the continued existence of threatened the U.S. Supreme Court and another tal impacts of its activities, and the act or endangered species.” before a U.S. District Court judge right requires that the public be included in the The exercises, intended to supplement here in Honolulu that is the subject of process before a finding of no significant training of Navy personnel in the detection this month’s cover article by Patricia impact can be made, no such opportunity of enemy submarines, involve the use of Tummons. had been provided in advance of the Federal to page 4

IN THIS ISSUE 2 New & Noteworthy 3 Editorial: Navy Harms Marine Mammals 4 A Guide to Recent Sonar Litigation 6 Deep-Diving Whales Most Vulnerable To Sonar Used to Detect Submarines 8 Landscapers, Conservationists Find Common Ground on Invasive Plants 9 Coral Disease, Monk Seals, Invasive Fish Among Marine Issues at HCA Conference 11 Board Talk: Mo‘omomi Violation, He‘eia Lease, Wind Energy, and More PHOTO: JOSEPH MOBELY - NMFS Humpback Whale Page 2 ■ Environment Hawai‘i ■ October 2008

Volume 19, No. 4 October 2008

NEW AND NOTEWORTHY

A Watershed Achievement: On August 28, the appears there is room for growth: Groundwater Kaua‘i’s Hono o Na Pali Natural Area Reserve, state Commission on Water Resource Manage- pumpage on Kaua‘i, Hawai‘i, and Moloka‘i is thus filling the small but significant gap be- ment adopted the 2008 Water Resources Pro- less than five percent of the total sustainable tween the NAR and the state’s Alakai Wilder- tection Plan, which is perhaps the most impor- yields for those islands. is pumping about ness Preserve. The addition creates a corridor tant of the six plans that collectively make up the 16 percent of its sustainable yield, while O‘ahu, for native ecosystem conservation that now Hawai‘i Water Plan as it serves as the official not surprisingly, is pumping the most, about 42 runs from the top of Mount Wai‘ale‘ale to the inventory of water resources statewide. Although percent. In certain hotspots, however, such as ocean. parts of the previous WRPP had been updated O‘ahu’s North Shore and the ‘Iao aquifer in The Natural Area Reserve Commission, over the years, the document as a whole had not Maui’s Wailuku sector, pumping is at about 95 which advises the Land Board, first approved been updated in 18 years. percent of sustainable yields. (Although pump- the concept of the expansion in August 2003. While all of the sustainable yields for the ing in central Maui actually exceeds The area contains intact native wet forest and state’s groundwater aquifers are updated in the sustainable yields considerably, the plan notes several species of rare and endangered plants, as plan, new interim instream flow standards, that the substantial irrigation recharge in that well as three endangered birds (koloa, kama‘o which determine how much surface water is area has not been factored into the yields for the and ‘o‘u). The addition also includes recently available for human use and consumption, are sector’s Paia and Kahului aquifers.) designated critical habitat for eight rare plants. not included since the Water Commission is While the long-awaited plan has been still in the process of setting them. roundly praised by the commission and mem- Ideally, the plan should be used to help bers of the public, Water Commission chair ensure that development does not impinge on Laura Thielen said at its adoption that the fact water resources, and looking island by island, it that it hadn’t been updated in 18 years “leaves a lot of people unprepared for changes.” Even so, attorney William Tam noted that the plan’s Environment Hawai‘i flexibility, which allows new data to be included 72 Kapi‘olani Street at any time, will allow it to serve as an “early 96720 Hilo, Hawai‘i warning system” upon which land use decisions

Patricia Tummons, Editor can be based. Teresa Dawson, Staff Writer The plan is available on the Water Susie Yong, Office Administrator Commission’s website at http://hawaii.gov/ Environment Hawai‘i is published monthly by Environment dlnr/cwrm/planning_wrpp.htm#2008update Hawai‘i, Inc., a 501(c)(3) non-profit corporation. Subscrip- and can be downloaded in its entirety (13.86 tions are $50 individual; $85 supporting; $85 corporate and institutional. Send subscription inquiries, address changes, MB) or in sections. The Book of Honu: Peter Bennett and Ursula and all other correspondence to Environment Hawai‘i, Keuper-Bennett are a husband-and-wife team 72 Kapi‘olani Street, Hilo, Hawai‘i 96720. Bridging the Gap: The state Board of Land and who have turned their passion for sea turtles Telephone: 808 934-0115. Toll-free: 877-934-0130. Facsimile: 808 934-8321. • E-mail:[email protected] Natural Resources voted September 12 to add into a near full-time vocation. They divide their Web page: http://www.environment-hawaii.org 650 acres of ‘ohi‘a-dominated forest to north time between Canada and the west coast of Environment Hawai‘i is available in microform through Maui, where they have dived and photographed University Microfilms’ Alternative Press collection (300 honu for the last two decades. Their photo- 48106-1346 North Zeeb Road, Ann Arbor, Michigan ). graphs – many available online at Production: For Color Publishing ◆ www.turtle.org – have documented the lives, Copyright © 2008 Environment Hawai‘i, Inc. ISSN 1050-3285 and, occasionally, the deaths, of many of the Quote of the Month animals that inhabit the off Honokowai. A publication of Now, the University of Hawai‘i has pub- Environment Hawai‘i, Inc. “[T]he Navy… cannot simply fall back on lished The Book of Honu by the Bennetts. The Officers Directors Editorial the training argument as a catch-all rea- 142-page paperbound volume is generously Patricia Tummons Kathy Baldwin Advisory Board son for avoiding its responsibilities.” illustrated with the authors’ photographs and President and Robert Becker Betsy Marston the reading level should be accessible to any Treasurer Mary Evanson Paonia, Colorado — U.S. District Judge David Ezra Teresa Dawson Leland Miyano Helen Chapin fourth-grader, but it still contains enough sub- Vice President Mina Morita Honolulu, Hawai‘i ◆ stance to satisfy curious adults. The amazing Karen Miyano photographs alone are worth the price of ad- Secretary mission: $18.95. October 2008 ■ Environment Hawai‘i ■ Page 3

EDITORIAL The Navy’s Shameful Acts Harm Marine Mammals

he Navy has clearly and brazenly bro- succumbed to political and gave the stoplights whose thumping bass can be heard Tken the law in its push to carry out Navy exactly what it wanted – the prospects for blocks; the chirps of ten thousand coqui undersea warfare exercises in Hawai‘i. that NMFS can prevail on this charge look – is mostly a nuisance, although stress from Without question, it violated the National pretty slim. long-term exposure can also harm one’s Environmental Policy Act when it released health. the first environmental assessment for the National Emergency? To whales, the noises emitted by Navy exercises in 2007. The first time that docu- The Navy argues that the Hawai‘i exercises vessels conducting their undersea warfare ment saw light of day was when it was in its are needed as a kind of refresher course for exercises can be frightening, disruptive of final form, with no opportunity for public sailors who have already received training in their normal behavior, interfere with com- comment. Not surprisingly, the Navy gave the use of sonar to detect quiet enemy sub- munication, and cause stress. Under certain itself the green light to move forward with the marines. (The training, which occurs in conditions, whales can lose their hearing and series of 12 exercises planned over the next two waters off Southern California, is itself the even die from injuries caused by the pressure years. The first two occurred in April 2007. If subject of a lawsuit that will be argued before of the noise. there were any doubt as to its failure to the U.S. Supreme Court later this month.) Last month, the International Fund for comply with NEPA, the Navy scrubbed that If so, argue lawyers for the plaintiffs in the Animal Welfare, a plaintiff in two of the out with a hastily prepared second EA – Hawai‘i case, that suggests that the Navy has California lawsuits concerning MFA sonar, virtually identical to the first – that was floated no compelling reason to undertake exercises released a report, “Ocean Noise: Turn it for public comment some nine months later, without regard to the harm they may have Down,” noting that in some regions, the after a lawsuit had been filed challenging the on marine mammals. level of noise in the ocean is doubling each Navy’s actions. While it could be argued that the Navy’s The relentless increase in ocean noise pollution second EA cured one problem, it did not quiet may soon threaten marine mammals at them all. NEPA also requires that agencies prepare full environmental impact statements population levels. What a terrible irony it would be whenever possible effects on the environ- if the ultimate effects of this ‘invisible pollution’ ment are uncertain or involve unique or become obvious only once it is too late. unknown risks. As Judge David Ezra noted in his injunction against the Navy last February, The Navy, however, has argued that the decade. “Ocean noise pollution is already “If ever a factual scenario satisfied this criteria, exercises in Hawai‘i are, if anything, more driving some marine mammals from their it is this one.” important than those in California, and that breeding and feeding grounds,” wrote IFAW Just as surely, the Navy breached the the training must come as close as possible to president Fred O’Regan in a foreword. Coastal Zone Management Act. Under that simulating actual warfare, with little regard “While we have much more left to learn, law, the Navy must inform the state of Hawai‘i for the welfare of marine mammals. Indeed, leading marine scientists warn that in addi- at least 90 days in advance of any activities the Navy has obtained from the Secretary of tion to losing their hearing from the worst that may affect coastal resources. It did not do Commerce a National Defense Exemption of our largely uncontrolled ocean noise so until August 2007, and even then, the under the Marine Mammal Protection Act pollution, some marine mammals are al- Navy’s so-called “negative determination” – to let it pursue its exercises in Hawai‘i with- ready being killed by it.” claiming that the exercises would have no out concern for the niceties of that law. After naval exercises involving MFA sonar effect – was erroneous. To quote Ezra again, Judge Ezra bowed deeply to the Navy’s led to mass strandings of beaked whales in the “The Navy could not have accurately deter- claims, and while he issued an injunction Canary Islands in 2002, the government of mined that there would be no reasonably based on the likelihood that the plaintiffs Spain outlawed military sonar exercises within foreseeable effects on coastal uses or resources would prevail on the allegations of NEPA and 50 nautical miles of the islands’ coastline, the if the information it relied on to make this CZMA violations, he allowed the exercises to IFAW report notes approvingly. Is it asking determination” – the environmental assess- go forward, albeit under conditions that too much to think that Navy training also can ment – “was insufficient.” afforded whales slightly more protections be restricted in areas where deep-diving whales A separate issue is whether the National than the Navy had imposed upon itself. are unusually vulnerable? Marine Fisheries Service violated the Endan- To quote O’Regan of IFAW once more: gered Species Act when it issued a flawed Meanwhile, in the Ocean “It is time for the international community biological opinion that effectively blessed the The battle in the courtroom should not … to work together to take precautionary Navy’s Hawai‘i exercises. That issue was not obscure the real impact that Navy mid- action now. Without such collective action, among the ones before Ezra when he issued frequency active sonar is having in the ocean. the relentless increase in ocean noise pollu- the injunction last February, but it is coming And not just in the ocean around Hawai‘i, tion may soon threaten marine mammals at up for argument this month. Based on the but globally. population levels. What a terrible irony it history of the biological opinion – NMFS at To humans, unwanted noise – an would be if the ultimate effects of this first dragged its feet, wanting the Navy to do unmuffled motorcycle roaring past a bed- ‘invisible pollution’ become obvious only an EIS rather than an EA, but then meekly room window at night; boomboxed trucks at once it was too late.” Page 4 ■ Environment Hawai‘i ■ October 2008

exercises to be conducted off the Southern California coast between February 2007 and A Thumbnail Guide to Recent Sonar Litigation January 2009. According to the Navy’s own estimate, the exercises would result in a total he Navy’s use of high-intensity sonar the exercises would constitute a violation of of 170,000 “takes” of marine mammals. Thas been challenged in several court the Marine Mammal Protection Act as The plaintiffs accused the Navy of again cases, including three that recently came well. The EA had been prepared for violating NEPA, the Endangered Species before the 9th U.S. Circuit Court of Ap- RIMPAC 2006 exercises after a mass strand- Act, and the Coastal Zone Management Act peals. Oral arguments for one of the cases ing of some 200 melon-headed whales had and sought to ban the exercises until the will be made this month before the U.S. occurred in Hanalei Bay, Kaua‘i, during violations were cured. Supreme Court. RIMPAC 2004. In August 2007, Judge Florence Marie The Navy sought to fend off the litiga- Cooper found that the plaintiffs had a good RIMPAC tion by invoking the national defense ex- chance of succeeding in their NEPA and The first lawsuit was filed in June 2006 over emption allowed in the MMPA. But days CZMA claims and issued a preliminary in- the Navy’s environmental assessment for later, Judge Florence Marie Cooper granted junction. (Unlike Judge Ezra, in the Hawai‘i the 2006 Rim of the Pacific (RIMPAC) naval a temporary restraining order based on the case, her injunction did not allow the exer- exercises. Suing Secretary of the Navy NEPA claim alone. The litigation was cises to be conducted pursuant to court- Donald C. Winter, Secretary of Commerce settled after the Navy agreed to beef up imposed mitigation measures.) At the same Carlos M. Gutierrez, National Marine Fish- mitigation measures when employing mid- time, she denied the Navy’s request to stay eries Service administrator William frequency active sonar. the injunction. Hogarth, and National Oceanic and Atmo- The Navy appealed to a panel of the 9th spheric Administration head Conrad C. SOCAL Exercises Circuit, which, on August 31, granted a stay Lautenbacher were the Natural Resources The second was filed in March 2007 and is of the injunction pending a full hearing on Defense Council, other environmental and still being litigated. That lawsuit, brought the injunction. In November, after a hear- conservation groups, and Jean-Michel by the Natural Resources Defense Council ing on the issues, the 9th Circuit Court of Cousteau. They claimed that the Navy’s and several other groups against the Navy, Appeals remanded the case back to Judge environmental assessment violated the Na- challenges the Navy’s use of mid-frequency Cooper, with instructions to craft mitiga- tional Environmental Policy Act and that active sonar in undersea warfare training tion measures so that the Navy would be

Koalani Kaulukukui, alleged that the agen- that the use of mid-frequency active sonar Sonar from page 1 cies and their administrators had violated (MFAS) had no documented effect on deep- mid-range sonar at levels believed by many provisions of NEPA, the Endangered Spe- diving whales. scientists to cause permanent harm to ma- cies Act, the Coastal Zone Management In the months following the filing of the rine mammals, and for periods of up to 222 Act, and the National Marine Sanctuaries complaint, the Navy sought to cure some of hours (nearly 10 days) per exercise. Al- Act. The lawsuit asked for a declaratory the violations. In September, it released for though litigation involving the use of sonar judgment finding that the Navy had vio- public review and comment a new (but in the Navy’s Rim of the Pacific (RIMPAC) lated the laws, vacating the NMFS biologi- virtually unchanged) environmental assess- exercises had resulted in the Navy agreeing cal opinion and the FONSI, and enjoining ment of the impacts of the undersea warfare to more than two dozen conditions in- the use of high-intensity, mid-frequency exercises. This, the Navy claimed, made tended to mitigate harm to marine mam- active sonar during or in association with moot the allegations of non-compliance mals, in the case of the Undersea Warfare the planned exercises until the agencies with NEPA. For its part, NMFS revised the Training Exercise (USWEX,) no mitigation were in full compliance with applicable biological opinion it had issued, tweaking it measures were included in either the NMFS laws. to address several errors brought to the biological opinion or the environmental agency’s attention by the plaintiffs’ experts, assessment other than a meek list proposed A Rush to Cure but still allowing the Navy’s planned exer- by the Navy. After a series of planning meetings and cises to move forward with minimal mitiga- The first two exercises were conducted scheduling conferences, during which the tion. in April 2007. Within a few days of each Navy disclosed that its next round of In an effort to address the allegations of exercise, dead pygmy sperm whales washed USWEX was scheduled for sometime in CZMA violations, the Navy had given the up on Hawai‘i beaches – a pregnant female November, the plaintiffs filed with U.S. state Office of Planning a “negative deter- on Lana‘i, an adult male on Maui. District Judge David A. Ezra their motion mination” in early August, stating that the On May 16, 2007, the Navy and NMFS for a preliminary injunction in August warfare exercises would have no effect on were sued by five groups concerned with 2007, accompanied by statements from six coastal resources. protecting marine resources – the Ocean of the world’s foremost experts on the As to the claim of violating the National Mammal Institute, KAHEA: The Hawai- subject of sonar’s impact on whales. The Marine Sanctuary Act, the Navy argued that ian-Environmental Alliance, the Animal arguments in support of the injunction the use of sonar in undersea warfare exer- Welfare Institute, the Center for Biological repeated and expanded on those contained cises was identified as an existing use at the Diversity, and Surfrider Foundation, in the original complaint, while the collec- time the Hawaiian Island Humpback Whale Kaua‘i Chapter. The groups, represented tive views of the plaintiffs’ experts chal- National Marine Sanctuary was established. by Earthjustice attorneys Paul Achitoff and lenged the claims of the Navy and NMFS It disputed the plaintiffs’ assertion that the October 2008 ■ Environment Hawai‘i ■ Page 5 able to carry out its exercises in some man- gency circumstances…. It permitted the the case in its 2008-09 term. ner. Navy to follow the prescribed arrangements Judge Cooper promptly revisited the to continue its exercises pending comple- LFA Sonar issues and on January 3, 2008, she issued a tion of the Navy’s EIS.” Another lawsuit filed by a coalition of conser- revised preliminary injunction that imposed Again, the case was remanded to Judge vation and animal welfare groups headed up mitigation measures on the Navy. In re- Cooper, who, on January 17, issued a partial by the NRDC took on the issue of the Navy’s sponse to Navy concerns, the injunction stay pending her consideration of the Navy’s use of low-frequency active sonar, alleging was again modified on January 10 – but not request that the injunction be vacated. But that the Navy and the National Marine Fish- enough to satisfy the Navy. When Cooper after hearing the Navy’s arguments, on Feb- eries Service had improperly approved the did not agree to a stay of the injunction, the ruary 4, Judge Cooper once more denied Navy’s use of this type of sonar in up to 75 Navy appealed to the 9th Circuit Court of the request to vacate the injunction and lift percent of the world’s oceans, violating the Appeals on the evening of January 15, asking the stay. Among other things, Cooper de- Marine Mammal Protection Act, the Endan- it either to vacate the injunction or issue a termined that the CEQ’s imposition of “al- gered Species Act, and the National Environ- stay. ternative arrangements” was invalid, since mental Protection Act. Last February, U.S. As the Appeals Court later wrote, “The no emergency conditions existed to allow District Judge Elizabeth Laporte of the North- Navy’s motion was based in part on two such an action. ern District of California found that the developments that occurred on the same Two days later, the Navy appealed once plaintiffs were likely to prevail on several of day that the motion was filed. First, the more to the 9th Circuit, seeking a stay so it their charges and ordered the parties to nego- President of the United States … exempted could proceed with exercises planned for tiate mitigation measures. In August, the from the provisions of the CZMA the Navy’s March 2008. court-approved settlement was announced; it use of MFA sonar during the SOCAL exer- By February 29, the Appeals Court judges requires the Navy to adhere to mitigation cises, finding that such use of MFA sonar is had issued their order, refusing to overturn measures it had agreed to years before on the ‘essential to national security’ and in the Judge Cooper’s injunction but at the same use of low-frequency sonar and avoid cer- ‘paramount interest of the United States.’ time, “out of an abundance of caution,” tain specified areas, including the Second, the [Council on Environmental modifying in the Navy’s favor two of the Papahanaumokuakea Marine National Quality], finding ‘emergency circum- injunction’s provisions that the Navy Monument and the stances,’ purported to approve ‘alternative claimed could impair its readiness. On June Humpback Whale Marine Sanctuary. arrangements’ to accommodate those emer- 23, the Supreme Court agreed to hear — P.T.

pre-existing exercises did not include high- that Judge Ezra might grant a temporary circumstances,” Ezra wrote in his order, intensity mid-frequency active sonar; “the restraining order against the Navy’s planned “the court finds there is no longer a threat of Navy has been employing the same active November warfare exercises. “We were run- immediate harm to plaintiffs’ interests and, mid-frequency sonar technology in Hawai`i ning around procedurally while the Navy as such, plaintiffs’ injunction motion is now for the past 60 years,” Department of Jus- tried to cure all of the defects in their moot.” If the Navy changed its schedule, tice attorneys representing the Navy argued environmental assessment to effectively however, Ezra would give the plaintiffs’ in court filings. moot the lawsuit,” he said in a telephone permission to refile their motion “on an The Navy’s response to the motion for a interview. “They wanted to change the expedited basis.” preliminary injunction was made on Sep- briefing schedule, so it would accommo- “I knew there was a risk the exercises tember 27, four weeks after a divided panel date the release dates for the revised EA and would occur before the injunction hear- of the 9th U.S. Circuit Court of Appeals in biological opinion, and so we went through ing,” Achitoff said, “but I really didn’t have California had granted the Navy’s emer- all that. They wanted to give me two days a choice…. Without an injunction, they gency request for a stay of a preliminary to respond to their new briefs before the were free to do their exercises. The only injunction that had been issued in a Califor- motion for injunction was heard, which alternative was to seek a temporary restrain- nia case with many similarities to the was scheduled for the beginning of No- ing order, and I didn’t do that because I Hawai‘i case. In the California litigation, vember. wanted to have everything briefed fully, and the Natural Resources Defense Counsel “I resisted that. I didn’t want the date to I preferred not to ask Judge Ezra to issue a and other groups had sought to prevent the be moved, but the way that things played TRO at the last minute,” in light of the 9th Navy from undertaking two types of exer- out, I either had to move the hearing back, Circuit Appeals Court action in the NRDC cises involving the use of high-intensity or had to respond to their briefs in too short case, which ruled out a total sonar ban. sonar. The judge hearing the case had issued a period of time. So I said, all right, we’ll the injunction, which the Navy then ap- have to move the hearing date back further A Rush to Exercise pealed to the 9th Circuit; the motions panel into November.” Within weeks of the November hearing, the concluded that while better mitigation On November 16, when Judge Ezra Navy announced it had moved up the sched- might be appropriate, a complete ban on finally conducted a conference on the in- ule for the next planned exercises, which sonar was not. (This case, which is to be junction motion in his chambers, attorneys now were to occur in March 2008. In re- argued before the Supreme Court later this for the Navy announced that the Novem- sponse, Ezra scheduled a hearing on the month, is discussed more fully in a separate ber exercises had concluded that morning motion for an injunction on February 11. article in this issue.) and that the next exercises were not sched- In a court session that lasted little more In this context, says Achitoff, one of the uled to occur until sometime in the sum- than an hour, Ezra announced he had pre- plaintiffs’ attorneys, there was little chance mer of 2008. “In light of these changed pared nine questions for the parties to ad- Page 6 ■ Environment Hawai‘i ■ October 2008

in waters off Washington state, California, and North Carolina. Deep-Diving Whales Most Vulnerable Experts speculate that the loud “pings” emitted at mid-range frequencies by the Navy To Sonar Used to Detect Submarines during undersea warfare exercises can affect deep-diving beaked whales in a couple of he best chance most of us have to see a yond the Navy’s control. different ways. The high pressure of the TCuvier’s beaked whale is if it is in trouble. Whale experts disagree, noting repeated sound blasts may cause hemorrhaging in the The species (Ziphius cavirostris) was scien- incidences of whale strandings that occur in whales’ ears. This can cause disorientation, tifically described only in 1823, and even then, connection with military sonar exercises. leading the whales to beach themselves. Also, the description was made on the basis of a In the Bahamas, for example, in 2000, 16 the sonar may interfere with behavior, lead- skull collected in 1803. marine mammals stranded, including 10 ing whales to surface rapidly instead of more But with the increasing use by the U.S. beaked whales. Seven died, with NMFS find- gradually and bringing about a condition Navy of mid-frequency sonar as part of sub- ing that the “most likely cause of the ob- similar to the “bends” experienced when marine detection exercises, strandings of served trauma was either acoustic or impulse human divers ascend too rapidly. Cuvier’s beaked whales may well be on the injuries.” (Since then, the ocean around the Whatever the cause, the Navy itself has increase in Hawai‘i. On July 28, a young male Bahamas has been virtually depopulated of estimated that over the course of two years, its stranded on a Moloka‘i beach and later died Cuvier’s beaked whales.) Investigations planned undersea warfare exercises in waters within a day of the Navy concluding Rim of showed later that the level of sonar that the around Hawai‘i will result in more than the Pacific exercises in nearby waters. Accord- whales had been exposed to was far less than 61,000 exposures of whales to sounds at or ing to the National Marine Fisheries Service, the Navy had initially claimed. exceeding 173 decibels, with 22,598 “takes” of only five instances of Cuvier’s beaked whale In 2004, about 200 melon-headed whales whales federally listed as endangered. strandings had been reported in Hawai‘i stranded in Hanalei Bay, Kaua‘i, during The lawsuit filed by Ocean Mammal In- before that date: in 1950, 1970, 1980, 1996, Rim of the Pacific exercises. One calf died. stitute and other conservation groups in and 1998. In April 2007, right after the conclusion Hawai‘i argues that while these are high The Navy has denied any culpability in of two undersea warfare exercises concluded, numbers, they are not high enough. The connection with the stranding last July. While a dead male pygmy sperm whale washed up Navy’s 173dB thresholds “are far too high, it concedes that high-frequency mid-fre- on Maui, while a pregnant pygmy sperm [so] its estimate of the range at which animals quency active sonar can have an impact on whale was found on a remote beach on may be affected is far too low.” The plaintiffs’ deep-diving marine mammals, which rely on Lana‘i. experts challenged also the Navy’s estimates a highly developed sense of hearing to locate In the last two decades alone, mass whale of the distances over which the sound would prey and navigate in sunless environments, it strandings have been associated with naval be attenuated, with whales’ behavior being maintains that the sonar signals only cause exercises off the coasts of the Canary Islands, disrupted miles from a mid-frequency sonar harm in combination with other factors be- Spain, Greece, Madeira, and Puerto Rico, and source. — P.T. dress before he would make a decision on Navy arguments put forward “are the same the injunction that the plaintiffs had sought. the motion. The questions ranged from arguments the Navy has been making time It was agreed by all parties that MFA sonar how NMFS decided on a 173-decibel level as and again, month after month; and … “can cause injury, death, and behavioral the point below which marine mammals’ every court that has heard them has rejected alteration” to marine mammals, he wrote. behavior would not be affected, to how the them…. At this point, it’s getting a little Although “a preliminary injunction is war- sonar exercises in Hawai‘i differed from ridiculous.” ranted under the law, … the undeniable those being litigated in California. As to the lack of strandings or deaths, national security interest of having a com- When the Navy attorney Luther Hajek Achitoff replied that not all injured whales petently trained Navy in these uncertain was given an opportunity to make a state- ment, he insisted that the fact that no whale “The Navy does not exist in a vacuum.” carcasses had washed ashore nor had whales — U.S. District Judge David Ezra been known to have recently stranded “demonstrates the fundamental weakness will wash ashore. Whale expert Robin Baird times strongly militates against stopping in [the plaintiffs’] case… The confluence of “pointed out in detail all the reasons why USWEX or stripping it of its usefulness.” factors that have been linked to MFA sonar whales can be harmed or killed as a result of Rather than halt the exercises altogether, strandings in other places, particularly the the sonar and not be found,” he said. “They Ezra went on to impose a series of mitigation Bahamas, do not occur during the USWEX.” include the presence of sharks, the fact that measures. They included all measures at- Another Navy attorney, Jay Govindan, the carcasses sink, the fact that there are tached to a national defense exemption to repeated the point: “The training that the fringing reefs that prevent the bodies from the Marine Mammal Protection Act that Navy conducts is not at the expense of the washing ashore, the fact that there’s a lot of the Secretary of Commerce gave the Navy in environment… [T]he plaintiffs really can’t inaccessible coastline in Hawai‘i. So again, early 2007, and eight more. Among them: rebut the fact that there has been no known you know, the Navy hammers on the fact ◆ Powering down of sonar by 6 deci- impact to marine mammals ever since these that, ‘well, show us the carcasses.’ That’s bels whenever a marine mammal is spotted mitigation measures” – measures proposed not the test here. It really isn’t.” within 1,500 meters, or by 10 dB when a by the Navy – “have been in place.” On February 29, Ezra issued an 84-page- marine mammal is within 750 meters, and Achitoff responded by noting that the order granting in part and denying in part stopping sonar altogether when a marine October 2008 ■ Environment Hawai‘i ■ Page 7 mammal is spotted within 500 meters of the ing may have had an impact on the March more than National Environmental Policy sonar dome. exercises, he continued, the Navy’s “con- Act violations alone. ◆ Monitoring for 60 minutes before tinued adherence to the uncompromising And, to underscore the point, in August the start-up of any MFA sonar and continu- position of ‘we must train as we fight’ the plaintiffs filed a motion for partial sum- ing to monitor while exercises are occur- remains unpersuasive.” mary judgment on the allegations that the ring. And monitoring is to include not only “The Navy does not exist in a vacuum,” National Marine Fisheries Service violated the use of lookouts with binoculars, but also Ezra went on to say. “Context, whether the Endangered Species Act by issuing flawed “passive acoustic monitoring,” including financial, cultural, environmental or oth- biological opinions as to the impact of the the Navy’s underwater hydrophones when erwise, requires the Navy and other undersea exercises. (The ESA claim, part of exercises are conducted in or near the Pa- branches of the armed services to function the original complaint, had not been in- cific Missile Range Facility as well as aerial in such a manner as to recognize consider- cluded in the motion for preliminary in- monitoring. ations in addition to those related to mili- junction.) Because NMFS had “relied heavily ◆ Powering down sonar when rapid tary preparedness. Where, as here, there is on the Navy’s inadequate EAs in formulat- changes in the seafloor occur (these condi- a likelihood that the Navy has not adhered ing its biological opinions,” the motion said, tions can result in a kind of underground to federal law, it cannot simply fall back on “the BiOps were at least as flawed as the EAs echo chamber, exacerbating the sonar’s ef- the training argument as a catch-all reason upon which they were based.” fect on whales), when sonar is being de- for avoiding its responsibilities.” ployed by more than one vessel in an area, After conferring with both parties, Ezra The Next Chapter and where bathymetry, channels or other modified his injunction for a second time, Documents attached to the motion indicate conditions conducive to “surface ducting” substituting the 9th Circuit’s surface duct- the extent to which the Navy had planned to may multiply the undersea noise generated ing provisions. He also imposed a 12-nau- evade NEPA requirements and skirt Endan- by the sonar. tical mile coastal exclusion provision dur- gered Species Act requirements. ◆ Gradually “ramping up” sonar, ing the Navy’s May and June exercises, In June 2006, seven months before any “with sound levels starting at sufficiently except for two areas west of Kaua‘i. notice of the USWEX environmental assess- low levels and gradually increasing to allow ment was made public, Navy personnel were marine mammals to depart the area before A Hurried Appeal discussing how to circumvent NMFS’ con- transmissions reach harmful levels.” Within a week of Ezra’s second revision to cerns over impacts to marine mammals. Both the plaintiffs and the Navy asked the February injunction, the Navy ap- “NMFS is holding the USWEX permit applica- Ezra for clarification on several points, lead- pealed to the 9th Circuit, asking that the tion until the Navy adds more mitigation,” a ing Ezra to revise the injunction in early appellate court either vacate the injunction Navy staffer informed his colleagues. “Also, March. Later that month, the Navy con- or remand it for further modification. In note the reluctance for NMFS to accept an EA/ IHA [incidental harassment authorization] “[T]he Navy hammers on the fact that, ‘well, package – [they] seemingly want an EIS/LOA.” show us the carcasses.’” (Under the Marine Mammal Protection Act, — Paul Achitoff, Earthjustice an IHA, or incidental harassment authoriza- tion, permits an agency to harass marine mam- ducted exercises under the provisions of the 2007, the Navy had announced it would mals; a LOA, or letter of authorization, allows revised injunction, but was unhappy with prepare a full environmental impact state- for incidental “takes,” which can include in- the outcome. Having to modify exercises ment for all the Navy’s activities in the jury or death.) when surface ducting conditions existed Hawai‘i Range Complex, including And, in fact, in a letter on October 5, resulted in “ineffective and flawed train- USWEX. By June 2008, with the EIS near- 2006 from NMFS to the Navy, NMFS pushed ing,” the Navy claimed in its second request ing completion (the record of decision was the Navy to go this route. “The LOA process for a modification to the injunction. It issued in late June), the Navy wanted allows NMFS to consider the potential for sought to eliminate completely any restric- essentially to moot the current litigation incidental mortality and to authorize inci- tion related to surface ducting. and have the undersea exercises conducted dental mortality provided the activity has a The plaintiffs responded by noting that under the terms set in the EIS without the negligible impact on the population or stock the conditions imposed by Ezra were al- court’s additional mitigation measures. involved. Because mid-frequency sonar has ready weak. If the injunction were to be Early last month, the appellate court been implicated in several marine mammal modified, they said, Ezra should either issued its first order in the case, refusing to stranding events including some involving replace the provision the Navy objected to vacate the injunction but agreeing to re- serious injury and mortality, and because with the one in the original injunction mand it to Ezra for consideration of there is no scientific consensus regarding the (changed at the Navy’s request) or adopt a whether the injunction should be vacated causal link between sonar and stranding surface ducting provision that the 9th Cir- or modified in light of the EIS. October 4 events, NMFS cannot conclude with cer- cuit Court had imposed following the was the deadline set by the court for the tainty the degree to which mitigation mea- Navy’s similar complaint in the California Navy to report back, either with an update sures would eliminate or reduce the poten- case. on the status and a motion for “appropri- tial for serious injury or mortality. Therefore, Ezra denied the Navy’s request. “Defen- ate relief,” or with a motion to supplement NMFS recommends…that the Navy revise dants have presented this court with no the Navy’s opening brief in the appeal. its application.…” new information… [They] did not provide According to Achitoff, if the Navy’s But when the Navy refused, NMFS the court with an alternative proposal be- preparation of the Hawai‘i Range Com- backed down. The biological opinion it yond the wholesale elimination of the … plex EIS has any effect, it still cannot moot released to accompany the January 2007 condition,” he wrote. Although the train- the whole lawsuit, since the claims concern environmental assessment for the exercises Page 8 ■ Environment Hawai‘i ■ October 2008 was based almost entirely on information fed it by the Navy and did not contain any independent analysis or critical review of Landscapers, Conservationists Find that information. NMFS itself acknowl- edged this in the bi-op: “For our exposure Common Ground on Invasive Plants analysis, NMFS relied solely on the results of acoustic models the U.S. Navy used.” elations between conservationists Kaua‘i Landscape Industry Council and the Making the flaws in the biological opin- R wanting to reduce the introduction O‘ahu Nursery Growers Association have ion even more egregious, the plaintiffs ar- and spread of invasive plants, on the one identified lists of seven and 12 plants, respec- gue, is the fact that when the Navy began to hand, and advocates of horticulture, on the tively, that they recommend not be sold prepare a more thorough EIS on all Hawai‘i other, have not always been smooth. But a because of their invasive qualities. Building Range Complex activities, including the workshop held during the July Hawai‘i on that early initiative, HASLA assembled a undersea exercises, in the summer of 2007, Conservation Alliance’s annual conserva- statewide committee of representatives from it adopted a different standard to deter- tion conference suggests the two groups all facets of the industry to review the com- mine harm to marine mammals – one have staked out common ground. plete list of 168 plants identified by the Weed based on a dose-response calculation (where Nearly 40 percent of the invasive plant as potentially invasive in injury is proportional to the intensity of species now plaguing Hawai‘i are ornamen- Hawai‘i. Their objective was to evaluate both sound received by an animal) instead of the tals that were introduced and spread by the risks and benefits of these plants to the indus- threshold calculation used in the EA (where horticultural trade (including botanical gar- try and to develop a consensus recommenda- any sound received below 173dB is deemed dens, garden clubs, exotic plant collectors, tion for their use. Planting options were to have no effect). The draft EIS plainly and the landscape industry). In 2004, in an expanded to reflect the complexity of the stated that the assumptions used in the effort to minimize future harm from this issue. They noted that some species, such as earlier EA were not supported by data. source, scientists at the University of Hawai‘i seashore paspalum (Paspalum vaginaum) fill But when the Navy hastily prepared a at Manoa and the U.S. Department of a specific need for which there is high de- second EA for the undersea exercises a few Agriculture’s Forest Service adapted a risk mand and no known alternatives, whereas months later, in an effort to make moot the assessment protocol used by New Zealand to others, such as the Australian treefern NEPA issues in the lawsuit pending before evaluate the invasive potential of plants in the (Cyathea cooperi), could be replaced with Ezra, it retained the 173dB-threshold calcu- nursery trade in Hawai‘i. When the resulting slower growing alternatives. Unlike newly lations of harm – and NMFS did the same in its accompanying biological opinion. Nearly 40 percent of the invasive plant species As the plaintiffs note, “although NMFS now plaguing Hawai‘i are ornamentals that were had been working on this newer methodol- introduced and spread by the horticultural trade. ogy for many months, and although it had already been utilized in a publicly released Hawai‘i Pacific Weed Risk Assessment was introduced species, those already widespread draft EIS in July 2007 assessing MFA sonar rolled out, representatives of the state’s land- in Hawai‘i may be little affected by industry activities, NMFS in its September 2007 re- scape industry were skeptical. initiatives. HASLA’s planting recommenda- vised BiOp pretended it did not exist. NMFS At the July conference, organized by tions include “do not plant,” “use an alterna- … was under intense pressure from the Navy Christoph Kueffer of UH-Manoa, Chris tive” and “avoid near sensitive locations” as to issue a biological opinion that did not Dacus and Boyd Ready of the Hawai‘i well as “continue to plant” and “seek more interfere with the Navy’s plan to conduct its Chapter of the American Society of Land- information and industry input.” Eventually, next USWEX in November 2007. Thus, when scape Architects and the Landscape Indus- Dacus said, the HASLA committee recom- NMFS issued its revised BiOp on September try Council of Hawai‘i noted that the risk mended placing 122 species on the “do not 26, 2007, it retained the obsolete methodol- assessment failed to balance costs and ben- plant” list, that the industry continue to plant ogy despite knowing the newer dose-response efits, describing it as a blunt tool at best. The 22 species, and that it seek additional industry methodology was not only more accurate, scores given to plants assessed did not al- input on 25. but available.” ways reflect the degree of invasiveness, they An industry survey done in 2007, Dacus This, the plaintiffs argue, constitutes a said, while predictions of a given plant’s said, revealed strong support for the plant- clear violation of the Endangered Species invasive potential were not always correct. ing guidelines and for reduction in use of Act. By failing to use what it already had The rate of “false positives” – predicting a invasive species among industry profession- acknowledged was a more accurate meth- plant to be invasive when it was not – was als. Next steps, he said, include seeking odology, or to consider the views of re- about 15 percent, they noted. Still, they assistance in defining environmentally sen- spected marine mammal experts not in the agreed that the WRA provided an objective sitive areas to avoid for species that will pay of the Navy, they conclude, NMFS’ evaluation of plants and was better than continue to be planted; reviewing and up- actions were “arbitrary and capricious” and, having to deal with multiple lists of undesir- dating recommendations based on new risk as such, constitute a violation of the Endan- able species posted on various websites, assessments, increasing the use of native gered Species Act. which provided uncertain guidance both to plants by horticulturalists; and investigating Government lawyers had not drafted a the public and the industry. the implementation of an agreement similar response to the most recent filing by Dacus described initiatives of the Hawai‘i to the National Pest Plant Accord developed press time. A hearing on the motion for Chapter of ASLA to provide guidance for its in New Zealand between the horticultural partial summary judgment was set for members in addressing invasive species issues. industry and state agencies charged with 9 a.m., October 27, in the courtroom of Working with Christy Martin of the Coordi- management of invasive species. Judge Ezra. — Patricia Tummons nating Group on Alien Pest Species, the — Julie S. Denslow October 2008 ■ Environment Hawai‘i ■ Page 9

sive care facility that gives pups and juve- niles a better chance of surviving to adult- Coral Disease, Monk Seals, Invasive Fish hood. Right now, with a relatively small num- Among Marine Issues at HCA Conference ber of adult females remaining and fewer than one in five pups surviving, Charles he new green is blue,” says Sylvia Throughout FFS, less than half a per- Littnan, a monk seal researcher with the TEarle, the pioneering marine re- cent of the corals are affected with these National Marine Fisheries Service, said searcher who was a plenary speaker at this tumors. However, at “tumor city,” a 12-by- that the entire Hawaiian monk seal popu- year’s Hawai‘i Conservation Conference. 14 meter area, 40.2 percent of the corals are lation is in “kind of a death spiral,” declin- And with a theme of Island Ecosystems: affected by the disease. “That is mind- ing at a rate of four percent a year. The Year of the Reef, the conference, held boggling,” she said, adding that the area Of the total population of about 1,200 last July at the Hawai‘i Convention Center includes a number of dead zones of de- seals, “Juveniles are hit extremely hard… in Honolulu and organized by the Hawai‘i formed, dead coral colonies. terrible, terrible survival” rates, he said. Conservation Alliance, offered dozens of The clustering of the corals with So in 2006 and 2007, Littnan and other marine-related presentations detailing the growth anomalies suggests that the cause is NMFS researchers ran an experimental cap- latest research on reefs and wetlands some kind of infectious agent, she said. tive care facility at Midway atoll. In total, throughout the Pacific and on life within The tumors, she added, drain the corals they helped raise seven pups, two of which those habitats. The following is a summary of energy and depress their ability to repro- were born on Midway and quarantined at of a handful of those presentations. duce. Kewalo basin on O‘ahu for a few months. Aeby said that the incidence of disease at The pups were fed herring and vitamins FFS is similar to where the Florida Keys and were kept in captivity anywhere from were in the 1970s. Since then, Acropora in 89 to 297 days. During their stay, the seals’ Coral Diseases Spread the Florida Keys and in the Caribbean have body improved up to 143 percent, become very rare, she said. Littnan said, adding that the longer they At The spread of disease at FFS is of par- were kept, the more they gained. ticular concern to Aeby since she says the One juvenile that was held only 23 days oral disease expert Greta Aeby has dis- area is the center of diversity and abun- died from what Littnan believes was Ccovered something startling amidst dance for Acropora corals. chronic nutritional stress combined with the seemingly pristine reefs of the North- While news of the spreading disease at the stress of being in captivity. Although western Hawaiian Islands. At French Frig- FFS has been well reported over the past maintaining the facility was difficult at ate Shoals, two coral diseases are spreading. two years, Aeby said that the looming times, with winter storm surges nearly One of them has already devastated reefs in threat of ocean acidification has brought burying the seals’ fenced pen and tsunami the Florida Keys, where between 1996 and some urgency to the need to understand threats forcing two evacuations, the re- 2000, it spread from 26 research stations to and control what’s going on up there. maining six seals got fat and were eventu- 131. At Australia’s , the “We need to start acting now… We ally tagged and released, Littnan said. number of reefs with the syndrome grew need to know more about diseases for Initially, the seals lost weight; two con- from four in 1998 to 33 in 2003. management,” she said, adding that surgi- tinued to deteriorate while the rest stabi- In 2002, none of the six reefs Aeby cal intervention may be appropriate since lized and improved, he said. All of the surveyed at FFS showed any disease, she corals regenerate. released seals foraged in less than 20 meters said. The next year, Aeby found one In response to a question from the audi- of water at first, but dove progressively Acropora reef with white syndrome and by ence about the genotype of the corals in deeper as time went on. While control 2005, it had spread to four reefs. That year, “tumor city,” Aeby noted that in Kane‘ohe seals all fed in one area, the released seals she marked 41 diseased coral colonies and Bay off O‘ahu, in the Main Hawaiian fed all over, with one swimming to Kure by the next year, 19 of them were dead. As Islands, two types of zooxanthellae inhabit island after a few weeks, Littnan said. of 2006, the most recent year for which corals there and that bacterial communi- Despite the initial improvement of some data is available, seven of the nine reefs ties differ among the two genotypes. of the seals, all of the animals, even the surveyed at FFS had Acropora white syn- If the corals in “tumor city” all con- control seals, are now dead, Littnan said. drome, Aeby said. (While Aeby was denied tained the same type of zooxanthellae, “that Of the “captive care” seals, four disap- a permit from the state Board of Land and would offer an alternative explanation,” peared while in good condition, even the Natural Resources to continue her work in for the growths she said, adding, “I think “champion who went to Kure,” he said. 2007, Hawai‘i Institute of we’re going to find a variety of reasons.” One seal continued to deteriorate, and the researcher Evelyn “Fenny” Cox received a last disappeared in poor condition. The permit to continue Aeby’s work this year.) deaths, Littnan said, were probably due to In addition to the white syndrome, Aeby a catastrophic event, like a shark attack or said she has found large lumpy growths on Monk Seals Pups Need debris entanglement. some of the Acropora corals at FFS. In While the results overall were abysmal, 2005, she found five instances of these Nursery, Expert Says Littnan said, the project was not a failure of unusual growths, and 24 the following technique and there is still a strong case for year. Over that time, she said, there had y all accounts, the endangered Hawai- doing more captive care. In the 1980s and been a 62.5 percent increase in the number Bian monk seals of the Northwestern 1990s, former National Oceanic and At- of tumors. Hawaiian Islands need some kind of inten- mospheric Administration researcher Wil- Page 10 ■ Environment Hawai‘i ■ October 2008 liam Gilmartin had run a similar program native waterbirds. Most wetlands through- Hawai‘i – from anchialine pools to coastal and successfully released dozens of seals. out the Main Hawaiian Islands have tila- wetland ponds – and they are known to Jeff Walters of the state Division of pia, whether Ruppia is present or not. But hybridize, she said. Aquatic Resources added in a later session of the sites where Ruppia is absent, more Even so, the fish can be controlled with on monk seals that managers need to do than 50 percent of them have been invaded electrofishing (in fresh water), blasting caps anything they can to improve juvenile by tilapia. that blow up their swim bladders, and survivorship, including developing a monk At one such site in O‘ahu’s Kawainui other non-chemical means. Chemicals, she seal nursery hospital and rehabilitation marsh, the largest wetland in the state, said, should only be used as a last resort. center. Peyton said she was surprised to see “This is one [species] that we want the nothing green growing in the water. To numbers to go down. If we can take that same Shark Attacks determine whether the tilapia were to energy [that we have put into depleting other In most cases, monk seal pups are success- blame for the lack of vegetation, Peyton fish species], we can do it,” she said. fully weaned, NMFS researcher George submerged fish exclosures around clumps Antonelis said in his presentation. But at of Ruppia, as well as fish cages containing French Frigate Shoals, where most pups Ruppia and either large or small tilapia are born, pup survival can be as low as 60 at two study sites, one at Kawainui and ‘Opihi Stick percent, with the majority of the deaths the other at the Kawaiele wetland on due to shark predation. Kaua‘i. To their Home Islands So between 2000 and 2005, the NMFS Peyton found that large tilapia grazed removed 12 Galapagos sharks from FFS on the Ruppia in the cages. In the cages hris Bird and Rob Toonen of the and the number of pups killed there containing small tilapia and in those with- CHawai‘i Institute of Marine Biology, dropped to about 10 a year. Since then, out any tilapia, the Ruppia grew just fine, and fellow researchers Brendan Holland, however, no sharks have been killed, in she found. “These results indicate that Brian Bowen, and Steve Karl have recently part because they have learned to stay away unfavorable water quality and/or sediment studied the DNA of ‘opihi (Cellana spp.), an endemic limpet and popular local food Between 2000 and 2005, the NMFS removed 12 item, to determine its population bound- Galapagos sharks from FFS and the number of aries. All three ‘opihi species in Hawai‘i pups killed there dropped to about 10 a year. have undergone a huge crash over the last century, Bird said in his presentation at the when humans are around. This year, in- characteristics cannot explain the absence conference. Despite the state’s imposition stead of trying to kill the sharks, researchers of Ruppia,” her abstract states. of size limits on harvesting (a 1.25-inch have deployed electromagnetic, physical, “The tilapia are very good at removing minimum) in 1978, ‘opihi populations and visual deterrents, and have also trans- vegetation,” she said. And because the native have not recovered, he said. While some located seals to safer areas. Although three Ruppia is distinct from varieties in North have proposed using marine protected ar- seals at FFS’ Trig Island and a total of nine America, “we are losing genetic diversity eas (MPA) to help improve populations, seals at FFS were lost to sharks, only one of before we can understand it,” she said. Bird said managers need to first know the deaths occurred after the deterrents In similar experiments using a red inva- where ‘opihi larvae go so they can decide were put in place. Antonelis added that 13 sive algae (Gracilaria salicornia) instead of where to put the MPAs. pups were successfully weaned at FFS. Ruppia, Peyton found that the algae Since ‘opihi larvae are only .17 mm grew significantly in the presence of long, tagging them to find out their pat- large tilapia because the fish grazed on the terns of migration is out of the question. algae’s epiphytes (plants that grow on other Instead, the researchers used differences in Tilapia Destroy Grass, plants). DNA to track different ‘opihi populations. Because tilapia are such prodigious graz- They found that no larvae from the North- Promote Invasive Algae ers, Peyton said, they are completely de- western Hawaiian Islands settle in the Main nuding coastal wetlands. And losing wet- Hawaiian Islands, and that each of the hile humans have filled, drained, or land plants is quite serious, she added, MHI supports a distinct population of Wotherwise destroyed much of the since they play such important roles in ‘opihi, which means than no larvae are state’s wetland habitats, tilapia, introduced processing organic carbon and regulating crossing the oceanic gaps between islands, here in the 1950s, are killing the native sea water chemistry. She said that Ruppia, in he said. ‘Opihi within each island, how- grass in those wetlands that remain. At the particular, is not only a food source for ever, are genetically similar, they found. same time, the invasive fish may also be waterbirds, but is habitat for ‘opae (native Based on these results, Bird said, every facilitating the growth of invasive algae. shrimp). island needs its own MPA. He also recom- That’s according to research by University Do we want wetlands with plants and mended some specific laws that could help of Hawai‘i graduate student Kim Peyton, high water quality or do we want a “fish- the species: 1) Protect all subtidal ‘opihi who presented her results at July’s Hawai‘i poo” system, she asked the audience, add- (which would affect the species known as Conservation Conference. ing that if resource managers want to im- koele), since adult ‘opihi don’t move; 2) Tilapia is one of five invasive species in prove Hawai‘i’s wetlands, tilapia need to protect all ‘opihi in current MPAs; and 3) sea grass habitats, said Peyton, whose re- be controlled. protect all ‘opihi on all man-made shores, search focused on the impacts tilapia were “We don’t expect to eradicate tilapia in since those areas could not be considered having on Ruppia maritima, a native Hawai‘i,” since about five species of tilapia cultural harvesting grounds. seagrass and an important food source for are established in a diversity of habitats in — Teresa Dawson October 2008 ■ Environment Hawai‘i ■ Page 11

of He‘eia’s work could continue while the BOARD TALK division prepared its documents, the board extended the group’s lease twice. The most recent extension was set to expire on August 31. Land Board Raps Mo‘omomi Hui According to a report by parks administra- tor Dan Quinn, the law prohibits the board For Unpermitted Shoreline Slab from granting another extension, but does allow the board to grant a month-to-month o treat me like one criminal. No treat them, you talk to them and tell them, ‘You revocable permit for up to one year. Parks Nme like I did something wrong…. I did can’t do that.’ We’ve got to deal with that as representative Steve Thompson told the board something that is good for the community. well,” he said. that the RFP/RFQ documents are being re- And I think I better stop myself before I get viewed by the Department of the Attorney one heart attack,” Kelson Poepoe told the state General and that it would likely be several Board of Land and Natural Resources on months before a new manager is selected. August 22. That day, the board’s Office of Friends of He‘eia In her testimony before the board, Friends Conservation and Coastal Lands had recom- Hangs On by a Thread director Carol McLean lit into the Parks Divi- mended that the conservation group Hui sion for its foot-dragging. Despite her having Malama o Mo‘omomi, where Poepoe serves t its August 22 meeting, Land Board called the division every two weeks about the as resource manager, be fined $2,000, plus Amember Tim Johns told the Division of status of the selection process, little had been $300 in administrative costs, for constructing State Parks’ Steve Thompson, “It goes without done, she said. The delay has put the organi- a 150-square-foot concrete slab at the shore of saying, but it’s unfortunate that the board has zation in the position of taking reservations for Mo‘omomi without a Conservation District to go through all these gyrations because you the hall and looking for interns for the upcom- Use Permit. guys haven’t done your job.” ing school year while its tenancy is uncertain, In his testimony before the board, Poepoe “It’s embarrassing,” Big Island Land Board she said. To plan its educational schedule and explained that he installed the slab in 2001 to member Rob Pacheco added. hall rentals and to apply for grants, her group protect the shore, which was being chewed up More than a year ago, the DLNR’s Division needs more than a one-year lease or permit, by vehicles taking boats in and out of the of State Parks was supposed to have developed she said. water. In written testimony, he stated that a Request for Proposals/Request for Qualifica- “I used to have ten people working for more than 1,000 native Hawaiians living in tions for a new manager for He‘eia State Park, me….We cannot pay people. I have been a the nearby Ho‘olehua Homesteads, who rely on the windward coast of O‘ahu. It hasn’t, and volunteer for years now,” she said, adding that on subsistence fishing, benefit from the ramp. the delay has pushed the non-profit Friends of if Friends of He‘eia was not there, “the place “The cement slab is just one of many He‘eia, which currently occupies the park and we currently have, the classroom and visitor’s actions taken by the Hui to accomplish its relies on grants to fund its educational pro- center, will be inhabited by thieves, drug mission of fixing problems along the grams, to the brink of collapse. dealers, and homeless people, exactly like the Mo‘omomi coast….We do not expect help For decades, Friends of He‘eia has leased the place in front of the park…. We recently asked from state agencies in addressing such prob- park’s visitor center and exhibit hall where it seven cars doing suspicious things to leave so lems because we have never received any help has taught more than 100,000 students about we can lock the gate.” that has been requested in our 14-year history nature and Hawaiian culture. But after two “My board is tired, I am tired...My board of community-based resource management,” other groups expressed their interest in taking wants to quit because of the shabby treatment he said in written testimony. over the job in 2003, the Land Board directed by the [parks] division,” she said. The Maui County Fire Department and State Parks to develop the RFQ and RFP to Unable to do much else at its August 22 other island residents testified that the slab is select the best manager. To make sure Friends meeting, the Land Board granted the group a the only place along the island’s northwest coast where fishing and rescue vessels can safely enter and exit the water. In the end, the board voted not to impose the recommended $2,000 fine, but decided that the hui must still pay the $300 in administrative costs. subscribe Because the OCCL stated that it does not Help us by making a donation or (finally) signing up for your own subscription. believe the slab is interfering with sand move- Sign me up for a new renewal subscription at the ment, the board also approved the office’s individual rate ($50) corporate rate ($85) recommendation that the hui either remove I wish to make a donation of $ a month through my credit card account for 12 months. the slab or apply for an after-the-fact CDUP (Fill out form below; minimum amount is $20 a month) within six months. I wish to make a onetime donation of $ . Before voting on the matter, at-large mem- To charge by phone, call toll free: 1-877-934-0130 For credit card payments: VISA or MC ber Tim Johns told Poepoe that the hui’s Account No.: Exp. Date: community- based management was a model Subscription Payment: $ One-time donation: $ Monthly authorization: $ Phone No.: (expires after 12 months) for the state. Signature of account holder “I don’t want you to think we don’t appre- name Mail form to: ciate the work that you’ve done over there. But address Environment Hawai‘i 72 Kapi‘olani Street we’ve got to look at the rules as well…. You city, state, zip code Hilo, HI 96720 guys have your rules and when people break We are a 501(c)(3) organization. All donations are tax-deductible to the extent allowed by law. Page 12 ■ Environment Hawai‘i ■ October 2008 Non-Profit Organization 72 Kapi‘olani Street U.S. Postage Hilo, Hawai‘i 96720 PAID Permit No. 208 Honolulu, HI

Printed on recycled paper one-year revocable permit. However, Johns produce up to 25 megawatts of electricity. water cables, the wind farm has the potential said that at a future meeting, he would sug- Avery, whose previous efforts under dif- to supply a significant portion of O‘ahu’s gest that the new lease not start until after the ferent companies led to the development of power needs. Friends of He‘eia permit expires at the end of the wind farm at Kaheawa, Maui, added that At the same September meeting, the Land August 2009. The board also directed the if the state succeeds in purchasing nearby Board also voted to release for public review division to provide an update on the status of Turtle Bay resort, he would want to see a a proposal by Maui’s Kaheawa Wind Project the RFP/RFQ process, as well as a report on wind farm constructed on the property’s to amend its HCP and ITL to add six meteo- the possibility of directly issuing an educa- mauka lands. rological towers, two on the existing wind tional lease with a concession component or At-large board member Tim Johns, who farm site and four on an adjacent property a conservatorship contract to the group. also sits on HECO’s board, recused himself where the project’s parent companies – UPC from voting on the recommendations. Wind Partners, LLC and Makani Nui Asso- ciates, LLC – plan to erect more turbines. Land Board member Tim Johns recused Oregon Developer Proposes himself from voting on both items. New Wind Farm at Kahuku Bird Protections Reviewed For Two Wind Farms est Wind Works, LLC, of Oregon has Board Approves Settlement Wreceived preliminary approvals to de- n September 12, the Land Board ap- velop a wind farm at Kahuku in North Oproved a habitat conservation plan For Molokini Coral Damage O‘ahu. At its August 8 meeting, the Land (HCP) and incidental take license (ITL) for Board granted a request by its Land Division the construction and operation of seven me- ccording to a settlement agreement ap- to withdraw 232 acres from the Kahuku teorological towers on Lana‘i that will collect Aproved by the Land Board on September Agricultural Park, approve in principle a the data necessary to determine whether or 12, Maui Charters has agreed to pay direct lease to West Wind for a wind farm, not the island’s northwest tip is a viable site the DLNR a total of $386,297 for damaging and approve a right-of-entry to allow the for Castle & Cooke, Inc.’s proposed $750 coral when its boat sank within the Molokini company to conduct tests on the site, which million wind energy project. Shoal Marine Life Conservation District in is adjacent to land where UPC Wind plans to Under the plan, Castle & Cooke’s towers 2006, plus $10,618 in administrative costs. develop a 30-megawatt wind farm. may injure or kill seven to 14 Hawaiian The agreement requires an initial payment of Keith Avery, president of West Wind petrels (‘ua‘u), and up to two Newell’s shear- $260,618, with subsequent annual payments Works, told the Land Board that if it can waters (‘a‘o), two Hawaiian stilts (‘ae‘o), and of $50,000 a year for the next two years and secure a lease for the land, his company will be two Hawaiian hoary bats (‘ope‘ape‘a) over a $36,297 in 2011. The company will also re- able to participate in Hawaiian Electric Co.’s two-year project period. All four of the spe- ceive credit for suspending its operations for efforts to generate 100 megawatts of power cies are federally or state-listed as threatened 2 1/2 months after the fall 2006 incident. from wind. A Land Division report states that or endangered. If more than 14 petrels are After approving the settlement, Maui Land direct negotiations for a lease will start once taken within two years, the plan requires Board member Jerry Edlao told Maui West Wind is issued a conditional use permit Castle & Cooke to remove the towers. Snorkel’s Jeff Strahn, “I know this has been and begins negotiations with HECO for a All but one of the towers were erected last real hectic for you guys and everybody else, power purchase agreement, among other year. In accordance with the plan, Castle & but something had to be done and I believe things. The report also states that West Wind Cooke will pay the Department of Land and that we were able to…learn from this and in plans to erect ten wind turbines, which will Natural Resources’ Division of Forestry and the future we can avoid this kind of situa- Wildlife more than $250,000 to manage the tion.” natural resources in the area. (For more details on this incident, see the According to news reports, Castle & “Board Talk” column of in the May 2008 Cooke seeks to erect as many as 125 wind edition of Environment Hawai‘i, available turbines on Lana‘i, which could generate 300 online at www.environment-hawaii.org.) to 400 megawatts of electricity. Using under- — T.D. 6 89076 79539 5