1. Palila (Loxioides bailleui, formerly Psittirostra bailleui), an endangered species
2. Sierra Club
3. National Audubon Society
4. Hawai‘i Audubon Society
5. Alan Ziegler

1. Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, CA

1. Hawai‘i Department of Land and Natural Resources
2. Susumu Ono, Chairman of the Hawai‘i Board of Land and Natural Resources
3. Hawai‘i Rifle Association
4. Gerald Kang

1. Edwin P. Watson, Deputy Atty. Gen., Honolulu, HI
2. Katsuya Yamada, Hilo, HI
3. John S. Carroll, Honolulu, HI

N/A

N/A

• Endangered Species Act of 1973 (“ESA”), §§ 3(19), 9(a)(1), 16 U.S.C. §§ 1532(19), 1538(a)(1).

1. In 1979, the plaintiffs had sought declaratory and injunctive relief in the name of the Palila (“Palila I”). The plaintiffs claimed that the defendants had violated the “taking” provision, which is section 9 of the ESA, by maintaining feral sheep and goats in the Palila’s critical habitat on the Island of Hawai‘i. The U.S. District Court of Hawai‘i granted the plaintiffs’ motion for summary judgment and ordered that the sheep and goats be permanently removed from the Palila’s critical habitat. On appeal, the U.S. Court of Appeals of the Ninth Circuit considered whether there were disputed material facts that precluded an order for summary judgment, and whether the trial court erred in finding that there was an unlawful taking of the Palila as defined by the ESA (“Palila II”). The U.S. Court of Appeals of the Ninth Circuit affirmed the district court’s order granting summary judgment to the plaintiffs and held that the defendants’ actions constituted an unlawful “taking” of the Palila under the ESA.
   
2. The State Division of Fish and Game introduced the mouflon sheep into Mauna Kea in an attempt to modify the feral sheep’s undesirable characteristics. The mouflon sheep are native to Corsica and Sardinia. The hybridization project was never completed due to pressure from hunters. The State of Hawai‘i Department of Land and Natural Resources maintained the mouflon sheep population within the Palila critical habitat for sport-hunting purposes. In Palila I, the plaintiffs had excluded the mouflon sheep in their prayer for relief until more studies were performed to determine whether the presence of the mouflon sheep in the Palila critical habitat had any adverse effects on the Palila population. Since Palila I, several papers had been published about the effect of moulfon sheep on the Palila critical habitat. Based on these papers, the plaintiffs considered the presence of the moulfon sheep in the Palila critical habitat to be a “taking” under the ESA. The plaintiffs sought injunctive relief against the defendants to remove the mouflon sheep from the Palila’s critical habitat (“Palila III”). The court held that the maintained mouflon sheep population for sport-hunting purposes was harming the Palila in violation of the ESA. Until the mamane forest on Mauna Kea regenerated to allow for the coexistence of both the mouflon sheep and the Palila, the court ordered for the mouflon sheep and the mouflon/feral sheep to be removed from the slopes on Mauna Kea.
   
3. In this action, the appellants asserted that the U.S. District Court of Hawai‘i interpreted the meaning of “harm” too broadly. The appellants argued that actual harm only included actions that cause immediate destruction of the Palila’s food sources. All other actions are potential harms even though there was a clear and casual link between the action and the destruction of the Palila’s food source. The court disagreed with the appellants’ interpretation of “harm” as defined in the ESA regulations. Instead, the court affirmed the U.S. District Court of Hawai‘i Judge King’s interpretation of “harm” that included activities resulting in habitat destruction that could result in the Palila’s extinction.
   
4. The appellants contended that the mouflon sheep could coexist with the Palila, and the reason for the decline of the Palila’s critical habitat was due to the feral sheep. The appellants pointed out that since the removal of the feral sheep and goats, the mamane-naio forests have regenerated. Additionally, the appellants have begun several regeneration projects. Finally, the State of Hawai‘i Department of Land and Natural Resources (“Department”) planned to control the mouflon sheep population. The appellees argued that the maturation of the mamane trees takes twenty-five years. Meanwhile, the mouflon sheep would continue to kill the mamane trees. Additionally, the appellees’ experts concluded that the Department’s plans were not going to be successful, and the moulfon sheep and Palila could not co-exist. Finally the appellees argued that the Palila population has remained static despite the removal of the feral sheep and goats. The court found that the appellees’ assertions corroborated with documentary evidence. Therefore, the court held that the Palila could not coexist with the mouflon sheep.
   
5. The court did not reach the issue of whether the interpretation of harm included habitat destruction that impeded the recovery of the endangered species. The court held that the district court’s interpretation of harm and findings that the mouflon sheep were causing harm to the Palila was sufficient to sustain an order for the removal of the mouflon sheep.
   
6. Accordingly, the court AFFIRMED the district court’s findings that habitat degradation that could result in an endangered species extinction constituted a “harm” as contemplated in the ESA.