State sues over aerial hunting ban


HILO — The state Department of Land and Natural Resources is asking a federal judge to overturn a Hawaii County ordinance banning aerial hunting, at least when it’s conducted by the state or its contractors.

At issue is a 2012 county ordinance passed after overwhelming community support for banning the practice of shooting animals from helicopters or airplanes. State law also bans aerial hunting.

But the state attorney general, objecting to the county ordinance on behalf of DLNR, says federal orders in 1979 and 1987 and a stipulated agreement between the state and environmentalists in 1998 preempt the county law.

Those orders gave the court jurisdiction over critical palila habitat on Mauna Kea. The palila, an endangered species, is a finch-billed honeycreeper found only on certain parts of Mauna Kea.

The federal court had ordered twice-yearly aerial feral sheep and goat eradication efforts to protect the palila habitat. The next such aerial hunt is scheduled some time in the last two weeks of April, said Roger Imoto, administrator for DLNR’s Division of Forestry and Wildlife, in a March 7 declaration filed with the court.

“There is a direct conflict between the 1998 federal court order requiring the state to conduct aerial eradication efforts on a semiannual basis and the county’s ordinance prohibiting aerial eradication within the county limits,” said the court motion, filed March 11 by Deputy Attorney General Michael Q.Y. Lau. “The ban directly interferes with the federal court’s order requiring the state to conduct aerial eradication operations within the palila’s critical habitat.”

The motion asks the court to declare that the county law violates a federal court order and is preempted under federal law, and enjoin the county from prosecuting anyone who participates in the state’s eradication efforts. There is no penalty provision in the ordinance, but violators could be subject to fines up to $100 and jail time up to 90 days for each offense, according to the state motion.

The motion and the county’s response is scheduled to be heard April 8 by Judge J. Michael Seabright, said county Corporation Counsel Lincoln Ashida.

Ashida, in his response to the motion, notes the stipulated agreement also required the state to “implement a program of public involvement.” That, Ashida said, has never happened.

“After ignoring the concerns of the individuals most directly affected by aerial hunting, the state now attempts to scold the County Council for enacting an ordinance which urges the state to do what it was required to do for the last 15 years, i.e. consider the public in its decisionmaking and actions,” Ashida said in the county’s response filed Monday.

Lau did not return a telephone call by press time Monday for further comment. A DLNR spokeswoman also didn’t return a telephone message.

Tony Sylvester, chairman of the Hawaii County Game Commission, worries that a federal court could, at the state’s request, expand the area where the state is allowed aerial hunting beyond the palila habitat on Mauna Kea.

He said there’s little the commission can do to stop the aerial eradication on Mauna Kea, but he can’t sit idly by, especially if there’s a chance the aerial eradication would be expanded.

“It’s sitting in a federal court, and we don’t have any say,” Sylvester said. “But that doesn’t mean they can start shooting anywhere. We’re going to defend tooth and nail against that.”

Neighbors have recently been complaining of aerial goat hunting activities in the watershed above Pelekane Bay. That area is being restored by the Kohala Watershed Partnership, which denies any illegal activity.

Sylvester plans to address the County Council’s Committee on Agriculture, Water & Energy Sustainability when it meets at 9:15 a.m. Wednesday at the West Hawaii Civic Center. The council on Thursday will consider its legal options during a planned executive session.

Area hunters, working with DLNR, have begun a relocation program that last week removed 60 mouflon sheep from the fenced Mauna Kea critical habitat area.

The animals are being moved to other land where hunting is allowed, Sylvester said.

Ashida praised the relocation effort, saying it’s a way to remove the feral ungulates without the state having to resort to the unpopular option of aerial hunting.

“When that happens, everybody wins. It’s not how they get removed; it’s that they get removed,” Ashida said of the relocation. “The state is everybody and that’s not just Oahu. It’s everybody, including the Big Island community.”