Today, Conservation Council for Hawai’i, Forest Conservation Council, and American Bird Conservancy sued the Federal Communications Commission (FCC) in federal district court in Honolulu for failing to protect two imperiled birds — the Newell’s Shearwater, or ‘A’o, and Hawaiian Petrel, or ‘Ua’u — from fatal collisions at seven large communication towers on Kaua’i and the Big Island. Both bird species appear on the list of threatened and endangered species protected by the Endangered Species Act (ESA). According to the U.S. Fish and Wildlife Service (FWS) and expert ornithologists, such communication towers disrupt nocturnal migration patterns of these species and cause birds to collide with the towers and the nearly invisible guy wires that support them. The ESA requires the FCC to consult with the FWS to develop modifications to lessen such impacts. Today’s lawsuit was prompted by the FCC’s failure to engage in such consultation despite the groups’ warning in April of 2004 that failure to comply with the law would result in litigation. The plaintiffs are represented by Paul Achitoff of Earthjustice and Letty Belin of the Santa Fe, New Mexico firm of Belin & Sugarman.
Fatal collisions between birds and communications towers are a nationwide problem, and according to experts, cause the deaths of up to fifty million birds every year, including birds at risk of extinction. The problem is escalating, with thousands of new towers being authorized by the FCC and constructed each year. Many of these mortalities are avoidable by modifying tower design features such as lighting, eliminating guy wires, or reducing tower height. The FCC has for years ignored repeated urging, from the FWS and citizen groups alike, to assess the environmental impacts of the towers it authorizes and implement appropriate modifications.
The seven Hawai’i towers at issue in the lawsuit are located near known populations of the imperiled birds, and all carry design features known to increase the likelihood of collisions. The FCC has a practice of delegating all responsibility for complying with all environmental laws to the companies that own the towers, and makes no effort to verify the companies’ claims that their towers present no environmental concerns, or to insure that the companies perform any review at all. The plaintiff groups are asking the court to declare this practice illegal. None of the tower companies nor the FCC has complied with the procedure mandated by the ESA to consult with the FWS to insure that the towers are not helping drive the listed bird species to extinction, and the plaintiffs ask the court to order the FCC to do so immediately.
Marjorie Ziegler, Executive Director of Conservation Council for Hawai’i, observed, “Building towers hundreds of feet high, near populations of endangered birds, without any environmental review, when scientists know that millions of birds collide with towers like this across the country, is unacceptable. We expect the Federal Communications Commission to comply with the law, like every other federal agency.”
CCH board member and wildlife biologist Don Heacock said, “Newell’s shearwaters and petrels are not just legally protected, they are both ecologically and economically important species. For two decades I have been picking up wounded, disoriented or dead Newell’s Shearwaters on Kaua’i. Protection for these seabirds, by minimizing impacts from communications towers and other structures, is long overdue.”
Earthjustice attorney Paul Achitoff noted, “Almost all of Hawai’i’s native bird species are now in danger of extinction, and several have become extinct just in the last few years. Considering the enormous problems these towers create, the tenuous hold Hawai’i’s bird species have on existence, the relative ease with which the problems may be mitigated, and the clarity of the Endangered Species Act’s mandate, the FCC’s refusal to comply with the law is outrageous and cannot be allowed to continue.”