State sues county over aerial hunting

The state is suing the county over its aerial hunting ban.

The suit, filed Thursday in Hilo Circuit Court by the Office of Attorney General David Louie, seeks to exempt state employees and private contractors hired by the state to eradicate feral sheep, goats, swine, cattle and axis deer from the 2012 county ordinance prohibiting aerial hunting.

The suit claims the county’s ban is preempted by state and federal law and that a state law that also prohibits hunting from airplanes and helicopters is not applicable to the state, its employees or hunters contracted by the state. The county ordinance is punishable by up to 90 days in jail and a $100 fine, while the state law makes aerial hunting a misdemeanor punishable by up to a year in jail and a $1,000 fine.

The suit is asking a judge to rule the county’s and state’s laws banning aerial hunting “are not enforceable by the County against state contractors and contractors retained by the State” for animal aerial control operations. It also seeks an injunction barring the county from prosecuting those employees and contractors under county or state law.

A federal court ruled on April 8, 2013, the state Department of Land and Natural Resources could continue aerial shooting of of grazing animals in the critical habitat of the endangered palila bird on Mauna Kea. But the ruling by Hawaii U.S. District Judge J. Michael Seabright was specific to a 1998 court order which allows aerial hunting in the palila habitat only.

According to the lawsuit, the state wants to resume aerial hunts of feral ungulates outside the palila habitat “in order to manage the State’s natural resources,” claiming the hunts are necessary “to preserve forested watersheds, native ecosystems and endangered species.”

The suit claims that on Dec. 23, 2013, the state asked County Prosecutor Mitch Roth for an agreement to not prosecute state employees and private contractors who engage in state-sanctioned aerial animal hunts, but the prosecutor “was not willing to enter into such a stipulation.”

The filing claims the state hasn’t conducted aerial eradication outside the palila habitat since the ban went into effect “because of the concern that State employees and private contractors could be prosecuted for such actions,” although Stephens Media reported in April 2013 aerial hunts were rumored on Kawaihae Road in South Kohala and on Hualalai in Kona. According to the suit, the county’s threat of prosecution “is interfering with the State’s ability to effectively manage wildlife and to protect native threatened and endangered species and ecosystems.”

The state has long claimed the aerial eradication of feral wildlife is needed to protect forested areas from overgrazing. The suit used as an example an aerial animal control operation DLNR conducted in 2009 to eradicate feral cattle in the Honua‘ula Forest Reserve mauka of Kailua-Kona. The suit said the operation “was necessary to promote the reforestation of native koa trees, to protect threatened and endangered species, and restore the watershed function in North Kona.”

Aerial hunting has been a controversial topic on Hawaii Island for several years. Some environmentalists argue the eradication of the ungulates is necessary due to the animals’ damage to native plant species that feed and shelter endangered native birds such as the palila.

Hunters, on the other hand, advocated for the aerial hunting ban, voicing concerns about the dwindling population of game animals in the areas open for hunting and a decrease in hunting areas for them. Hunters also describe the aerial hunts as wasteful, because the animal carcasses are generally left to rot after the shooting is done, although some have expressed a willingness to hike into remote areas to retrieve the meat.

Tom Lodge, chairman of the Hawaii County Game Management Advisory Commission, said Sunday evening that by not abiding by its own law against aerial hunting, the state is “disrespecting one of its own rules, in my opinion.”

“The state of Hawaii has been aerial eradicating for years, from the very early part of the 1980s,” he said. “… In my opinion, they’re not behaving in a manner that is conducive to proper management. They can’t be telling other people that they can’t aerial eradicate and then just go out and aerial eradicate. They’re not respecting the constitution of the state of Hawaii when they do that in the way that they do that.

“If you buy into this argument that they’re (non-indigenous hooved animals) not supposed to be here, well, they’re here now and they’re a resource. Everything we have is a resource. You know, these mountains and everything we have here are supposed to be managed in order that we can utilize these resources for the benefit of everybody. And the DLNR is not doing that.”

Deputy Attorney General Michael Lau didn’t return a phone call Monday seeking comment. The Tribune-Herald was unable to reach DLNR spokeswoman Deborah Ward by phone, and received no response to a Monday email with questions about the suit.

Deputy Corporation Counsel Craig Masuda said Monday the county hasn’t been served the lawsuit and had no comment. Roth said he also hasn’t seen the suit and couldn’t comment.

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