The Intermediate Court of Appeals (ICA) has upheld a previous ruling by the Environmental Court affirming the Final Environmental Assessment (FEA) for a project intended to combat avian malaria using the Incompatible Insect Technique (IIT) in east Maui. The mosquito-borne disease has been a major threat to native Hawaiian birds, contributing to the extinction of several species of honeycreepers.
"This is an emotional issue for people," stated Dawn Chang, Chair of the Board of Land and Natural Resources (BLNR). "These birds are part of our cultural and ecological heritage, and I think everyone wants to see them protected in the right way. Whether in support or opposition, we appreciate everyone who provided their manaʻo on this topic so informed decisions could be made on the adequacy of the FEA. What we do know is that taking no action will put these valuable manu or birds at further risk of extinction."
Maxx Phillips, Hawai'i director and staff attorney for the Center for Biological Diversity, expressed satisfaction with the court's decision. "This decision reinforces what we’ve known all along — that Hawai‘i is on solid legal and scientific ground in its effort to save native forest birds from extinction," Phillips noted. "The courts have once again made clear that we won’t stand by while avian malaria pushes these irreplaceable species to the brink. Our manu deserve a fighting chance."
The state Board of Land and Natural Resources approved the FEA in March 2023, noting it had no significant environmental impact. Hawai‘i Unites, a plaintiff in the case, challenged this approval as well as the issuance of a Finding of No Significant Impact (FONSI), arguing the Environmental Court had used an incorrect standard in reviewing the claim.
The ICA determined that the Environmental Court had used the correct standard when it reviewed the FEA and the FONSI. It also found that there was substantial evidence to support the BLNR's decisions and upheld the ruling for a summary judgment favoring the state.
"We are thankful for the ICA’s decision affirming the thorough environmental review process for this crucial project," said Deputy Attorney General Miranda Steed. "We remain hopeful that future generations will see native honeycreepers in the forest and not only in museums."
Deputy Attorney General Danica Swenson commented on the defense's foundation, stating, "Our defense was evidence-based and supported by the scientific analysis in the FEA. We appreciate the ICA reinforcing the importance of the Hawai‘i Rules of Evidence in this decision."
Although the ICA upheld the Environmental Court's decision, it has required the DLNR to amend the FEA to include an appendix complying with a specific Hawai'i Administrative Rule. This adjustment will not affect the ongoing IIT project.