On September 15, 2021, the Conservation Council of Hawaii and Earthjustice submitted a 60-day notice of intent (“NOI”) to sue the Grand Wailea Hotel for violating the Endangered Species Act (“ESA”).  The NOI alleges that the hotel, which lacks an incidental take permit, unlawfully is harming (i.e., “taking”) endangered Hawaiian petrels through the use of artificial lights.

According to the NOI, “[a]ttraction to bright lights is a major threat to the continued survival and recovery of the Hawaiian petrel[s]” which “use the moon and stars to navigate and are often distracted by artificial lights on their way out to sea.”  The NOI also alleges that “[d]isoriented birds will circle artificial lights until they fall to the ground from exhaustion or strike other human-made structures,” making them “susceptible to dying from predation, starvation, dehydration, or vehicle strikes.”

Similar citizen suits seeking to impose ESA liability for use of artificial lights have been unsuccessful in the past.  A major hurdle for citizen suits alleging take from artificial lights is proving causation.  

If you have any questions about the NOI or potential liability under the ESA, please contact Good Steward Legal at insights@goodstewardlegal.com.

Good Steward Legal is a principles-based business law office dedicated to protecting and advancing its clients’ interests by providing them with cost-effective, high-quality legal service.