Wedgetail shearwater birds are a protected species, but the federal government apparently thinks it is not protected enough in Hawaii.
Documents from the attorney general’s office describe a Justice Department statewide investigation focused mainly on Oahu.
It is where the DOJ claims a considerable number of wedgetailed shearwaters have been injured by state transportation lights, over a period of several years
In a letter asking for an exemption to hire outside counsel, the attorney general office writes that DOT has an option of entering into a plea agreement, or face a criminal trial.
During fledging season, the shearwater birds are attracted to the bright lights.
Shielding the light poles on the highway makes it less likely for the birds to be killed or injured.
The birds are known to nest in burrows in the mountains.
All along the H-3, the state has installed lights with a special flat lens which helps direct the beams of light along the highway.
Crews finished installing them along the freeway late last year.
Since 2007, all new highway projects have been required to install the newer directed lighting.
So far, 1,800 are in place.
The replacement of existing lighting has been progressing much slower, since safety issues may require poles to be relocated closer together.
For the department, it boils down to a cost issue.
"We are obviously trying to comply with this as much as possible but obviously it’s expensive," said DOT spokeswoman Caroline Sluyter.
The Justice Department recently prosecuted Kauai County and the Kauai island Utility Coop for violating similar laws.
Both entities were fined thousands of dollars, required to donate about a half a million for various programs for seabird protection , and forced to make millions of dollars in improvements.
It's not known whether this current federal investigation involves lights at the airports or harbors.
The Attorney General's office declined comment and calls to the Justice Department were not returned.