Palila v. Hawai‘i Department of Land and Natural Resources (I)
471 F. Supp. 985 (D. Haw. 1979)
Plaintiffs: Plaintiffs' Attorneys:
  1. Palila (Psittirostra bailleui), an endangered species
  2. Sierra Club, a Non-Profit Corporation
  3. National Audubon Society, a Non-Profit Association
  4. Hawaii Audubon Society, a Non-Profit Association
  5. Alan C. Ziegler, Division of Vertebrate Zoology, Bishop Museum, Honolulu, HI
  1. Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, California
  2. William S. Curtiss, Sierra Club Legal Defense Fund, Inc., San Francisco, California
  3. William S. Hunt, Hart, Leavitt and Hunt, Honolulu, Hawai‘i
Defendants: Defendants Attorneys:
  1. Hawai‘i Dept. of Land and Natural Resources
  2. Susumu Ono, Chairman, Hawai‘i Board of Land and Natural Resources
  1. Wayne Minami, Atty. Gen., State of Hawai‘i
  2. Lester G.L. Wong, Deputy Atty. Gen., Honolulu, Hawai‘i
Court: United States District Court, District of Hawai‘i
Opinion by: Samuel King, District Judge
Other Jurists: Court Below:
  • N/A
N/A
Key laws involved:
  • The Endangered Species Act of 1973, 16 U.S.C. § 1531, et.seq.
Summary:
  1. Plaintiffs sought declaratory and injunctive relief to stop Defendants from maintaining destructive populations of feral sheep and goats in the Palila’s critical habitat on Mauna Kea on the Island of Hawai‘i. The Palila is found only in the mamane-naio forest of Mauna Kea, where Defendants have maintained a State Game Management Area (hunting grounds) since 1950. The game animals feed on the leaves, stems, seedlings, and sprouts of the mamane trees, and the leaves of the naio trees, thus preventing forest regeneration and causing the Palila population to further decline. Plaintiffs characterized Defendants’ actions as a “taking” of the Palila, in violation of Section 9 of the Endangered Species Act (ESA), 16 U.S.C. § 1538 (a)(1)(B).
  2. Defendants first argued the Palila population has increased and that the Palila is not at its “minimal population level.” This is the level below which survival is impossible because the species lacks sufficient genetic variability or sufficient numbers of individuals for breeding. The Court recognized that this level for the Palila is unknown, but the U.S. Fish and Wildlife Service estimates that there are only about 1,400 to 1,600 individuals left. Also, there is an apparent overabundance of males, meaning that the genetic pool is actually much smaller than the numbers indicate.
  3. Defendants argued that the Palila currently has enough room to expand within its habitat, and therefore its situation is not critical. The designated critical habitat for the Palila encompasses only 10 percent of the bird’s historical range, and 20-30 percent of the critical habitat is presently uninhabited by the Palila. The Court said that Defendants’ argument only serves to strengthen Plaintiffs’ case because one of the main reasons for classifying the Palila as endangered is that it no longer occupies a significant portion of its historical range. Defendants’ argument is essentially that there are so few birds remaining that they don’t need any more forest.
  4. Next Defendants argued that no one knows for certain whether the mamane-naio forest is essential for the Palila’s survival because no one ever attempted to raise the birds in captivity in an alternate environment. But expert witnesses testified that the Palila would be unable to adapt to drastic changes in its environment because it is tied to the forest through evolution. Furthermore, it would be a waste of resources to raise Palila in captivity without a natural habitat into which they could be released.
  5. Defendants also argued that they should be allowed to leave a small number of animals for hunters because some forest regeneration would occur if the numbers of sheep and goats were reduced. The Court did not accept this argument, stating that as long as any animals remain, there will be hunter pressure to increase flock sizes, and Defendants have already shown susceptibility to this pressure. Even a small number of these animals can have a destructive effect. Furthermore, complete removal of these animals from the Palilas’ critical habitat would be relatively inexpensive and hunting opportunities would remain. Hunters could still hunt sheep and goats outside the habitat, and other types of animals inside the habitat.
  6. Defendants’ next contention was that this matter was not ripe for adjudication because the Board of Land and Natural Resources was still studying whether feral sheep and goats needed to be removed from the Palila’s critical habitat, and therefore there was no final agency determination to sue upon. The Court, however, found no final determination was required because Defendants’ actions at the time were causing immediate harm to Plaintiffs.
  7. Defendants tried a new line of defense by offering a Tenth Amendment argument. They challenged the power of the United States to enforce the Endangered Species Act against them, since the Palila is only found in Hawai‘i and no federal lands or federal funds were involved in Defendants’ actions. Defendants relied on Baldwin v. Montana Fish and Game Commission, 436 U.S. 371 (1978) to support state sovereignty over the fate of the Palila. The Court pointed out that Baldwin did not involve a conflict between state action and federal regulations. Furthermore, Baldwin contained dictum that could support both sides of the Palila issue.
  8. To counter Defendants’ argument, the Court explained that the ESA was enacted by Congress pursuant to several international treaties, including the Convention for the Protection of Migratory and Endangered Birds, March 4, 1972, United States- Japan, 23 U.S.T. 3329, T.I.A.S. No. 7990, and the Convention of Nature Protection and Wildlife Preservation in the Western Hemisphere, October 12, 1940, United States-Other American Republics, 56 Stat. 1354, T.S. No. 981. Both treaties specifically mention the Palila.
  9. The Court also relied on Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) for its explanation of the importance of the Act. The Supreme Court in Tennessee Valley Authority stated that Congress has determined, through the Act, that protection of endangered species is of utmost importance to mankind, and that the major cause of extinction is destruction of natural habitat. The Supreme Court also stated that preservation of endangered species’ natural habitat preserves possibilities of interstate commerce and potential resources for humanity. Thus the Court concluded that the Act may be enforced against Defendants because of the national and international interests at stake.
  10. Defendants attempted to argue that there was no “taking” of the Palila as defined by the Act, but a “taking” can include “significant environmental modification or degradation.” Defendants argued that there was no significant environmental modification or degradation because the Palila population is increasing and the forest is regenerating despite the presence of the sheep and goats. The Court said the facts were undisputed and supported the conclusion that there had been a taking.
  11. Finally, the Court addressed a question that was not raised by the parties: were the Defendants immune from suit under the Eleventh Amendment? Under the Eleventh Amendment, a state may not be sued by its citizens, or citizens of another state, without the state’s consent. However, state officials may be sued to enjoin them from violating the U.S. Constitution or federal laws. The Court points to language of the ESA (Section 11(g)) that could conceivably open up an Eleventh Amendment defense. In the ESA, Congress expressly authorizes private citizens to bring suit against any governmental instrumentality or agency “to the extent permitted by the eleventh amendment to the Constitution,” 16 U.S.C. § 1540(g). The Court interpreted this clause as a limitation on the scope of relief barring monetary damages against the state. To interpret it as creating blanket sovereign immunity to the private enforcement of the Act “would seriously impair the achievement of broad Congressional purposes underlying the Act and would lead to a right without an effective remedy” 471 F. Supp. 985 at 997.
  12. The Court concluded that the State of Hawai‘i has impliedly consented to be sued by actively participating in the conservation scheme contemplated under the Act and by enacting its own ESA in order to qualify for certain financial benefits under the federal Act.
  13. Plaintiffs motion for summary judgment was GRANTED, and Defendants were ORDERED to initiate steps for complete removal of feral sheep and goats from the Palila’s critical habitat within two years.