Lawsuit dismissed

A judge Thursday dismissed a lawsuit that sought to exempt state employees and contractors from county and state laws banning aerial hunting.

The ruling by Hilo Circuit Judge Glenn Hara thwarts state plans, at least for now, to conduct aerial hunting of feral ungulates such as sheep, goats, swine, cattle and axis deer beyond critical habitat of the native palila bird on Mauna Kea. A ruling in 2013 by a federal judge mandated aerial eradication of the mammals in the palila habitat.

The state sued the county last month seeking an injunction barring the county from prosecuting Department of Land and Natural Resources employees and contractors hired to perform aerial eradication outside the palila habitat under county or state law.

The judge took a hard line with Deputy Attorney General Michael Lau, saying “let’s focus on the state law.”

“There’s no firing from any aircraft. What’s the legal justification for doing that?” Hara inquired.

Lau noted aerial eradication of ungulates by the state has been occuring for more than three decades on the Big Island. He said the state has “a prerogative interest in wildlife management and that aerial shooting is a part of that function.”

Lau also argued state employees and contractors were automatically exempted from the state law, Hawaii Revised Statutes 263-10, by “general application doctrine.”

“You don’t charge a policeman or a fireman responding to a fire with a speeding ticket,” he said. “… That’s the same with this case. It doesn’t apply to state employees and contractors. Like the fireman and the policeman, they are (acting) in the furtherance of their duties.”

The judge noted state law doesn’t specifically provide an exemption for the state from the aerial hunting ban and added the attorney general could “go to the Legislature and create an exemption.”

“That is true, your Honor, if the Legislature was so inclined, but we don’t believe that existing law should be applied, in any event,” Lau replied.

“Why hasn’t the state changed the law in the past 30 years that it’s been engaged in this activity?” Hara asked.

“The state needs to perform aerial shooting in that particular area to remove the animals. It cannot be done solely on a ground-based effort,” Lau answered and added part of the reason for the request was to prevent ungulates from migrating into the critical palila habitat.

County Deputy Corporation Counsel Chris Schlueter said the court lacks jurisdiction to rule in the case and said a ruling for the state would be “a dangerous proposition for the community-at-large which sets a precedent that’s unfortunate.”

“This is not a case about the palila bird or whether the state can hunt within the critical palila habitat. That’s within the purview of the federal government. They have jurisdiction on that matter,” Schlueter said. “What the state now wants is for the court to find an exemption for aerial hunting all around the Big Island. There are no control measures. It’s a dangerous activity. It’s been contemplated by the Legislature and it wasn’t adopted.”

Schlueter called the ungulate migration argument “especially troubling to the county if the state intends to employ that matter … to extend their reach of aerial hunting.”

“The state’s already indicated it intends to promote reforestation and restore watershed function in North Kona,” he said. “So the state has indicated their motives (but) I don’t think the state has delineated their plans for this aerial hunting beyond the critical habitat of the palila bird, which is especially troubling.”

Hara said the state was asking for “an exception to what the court can render a declaratory judgment for, as to whether or not activities are criminal.”

Lau said afterward he “respect(s) the judge’s ruling.”

“We’re just going to have to go back and see what we’re going to do now,” he said.

Alternatives include an appeal of the ruling and proposing legislation to allow aerial eradication of ungulates beyond the palila habitat.

Assistant County Corporation Counsel Laureen Martin called the judge’s use of state law for his ruling “the correct interpretation, in my view.”

“If the state law permitted the state to do aerial hunting and we had passed an ordinance that was inconsistent, it would have been invalid.”

Tony Sylvester, a member of the county’s Game Management Advisory Commission said he’s pleased the judge ruled “the state does not have exemptions to state law in this sense.”

“Now, our homework is to work with the legislation to make sure that we can uphold the law and that changes are not done in the legislation session (next) year,” he said.

Hunter Pat Pacheco added “the law is for everybody.”

“If we do wrong in the law, we get penalized,” he said. “So, the state should realize if its workers do things against the law, they should be penalized (and) the state should be penalized.”

Tom Lodge, the game commission’s chairman, referred to Lau’s argument about firefighters and police officers, saying DLNR “created the fire in the first place by not managing game.”

“They’re not allowing them to be removed from the mountain either, that’s why they’re doing this aerial shooting,” he said. “The state, you know, doesn’t do management. They would not allow us to remove any game into a state property.

“So that leaves the game up there to be shot because there’s no place to take them in the state.”

Email John Burnett at jburnett@hawaiitribune-herald.com.