New Lawsuit Claims Artificial Lights Require Wildlife Permit

On February 7, 2022, the Conservation Council of Hawaii and Center for Biological Diversity filed a lawsuit in the U.S. District Court of Hawaii claiming that the Grand Wailea Hotel’s artificial lights are harming endangered Hawaiian petrels in violation of the Endangered Species Act (“ESA”).  The case is Conservation Council of Hawaii v. Bre Iconic Gwr Owner, LLC, Case No. 1-22-00054 (D. Haw.).

The complaint alleges that, over a fourteen-year period, an average of one Hawaiian petrel per year was attracted to artificial lights at the Grand Wailea Hotel, grounded due to light attraction, and subsequently found and recovered.  The complaint also alleges that at least one of these recovered birds was found dead and that other petrels have been harmed by the lights that were never found and recovered.  Although the complaint acknowledges that there are multiple sources of bright light on Maui, it claims that the Grand Wailea’s property stands out among all hotels as a “high-take zone.”  Based on these allegations, Plaintiffs allege that the Grand Wailea is violating Section 9 of the ESA by harming (“taking”) the endangered petrel without an incidental take permit.  Plaintiffs are seeking declaratory and injunctive relief.

Similar lawsuits seeking to impose ESA liability for use of artificial lights have been unsuccessful in the past, primarily because plaintiffs have been unable to prove causation.  The unique allegations in this case, however, provide a comparatively stronger case and may result in a precedential decision with broader implications for certain business operations.

If you have any questions about this case or the ESA, please contact Jared Wigginton at jared@goodstewardlegal.com.

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