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
2. William S. Hunt, Paul Johnson & Alston, Honolulu, HI

1. Hawai‘i Department of Land and Natural Resources
2. Susumu Ono, Chairman of the Hawai‘i Board of Land and Natural Resources
3. Sportsmen of Hawai‘i, Inc.
4. Hawai‘i Island Archery Club
5. Hawai‘i Rifle Association
6. Gerald Kang
7. Kenneth Funai
8. John Wong
9. Irwin Kawano

1. Corinne Watanabe, Atty. Gen., Honolulu, HI
2. Edwin P. Watson, Deputy Atty. Gen., Honolulu, HI
3. Katsuya Yamada, Hilo, HI
4. 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. 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.
   
3. 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.
   
4. On June 13, 1987, the plaintiffs filed a motion to fix the amount of attorney’s fees. Under 16 U.S.C section 1540(g)(4), the court may award litigation costs when appropriate. To determine litigation costs, the court looked at several factors: (1) the time and labor required; (2) the novelty and difficulties of the case’s issues; (3) the required skill needed for the proper legal service; (4) whether the attorney is precluded from other employment as a result of accepting the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the case; (8) the amount involved in the case and the results obtained; (9) the attorneys’ reputation, experience, and ability; (10) the undesirability of the case; (11) the nature and length of the client-attorney relationship, and (12) awards in similar cases.
   
5. The plaintiffs asserted that 809.8 hours were spent on this case. The attorneys’ hours included the amount of time spent on preparation and trial time. The plaintiffs also pointed out that they tried to minimize the amount of travel time and attempted to expedite the case. Finally, the plaintiffs had excluded numerous hours spent on the case that they refrained from billing. Therefore, the court found that 809.8 hours was a reasonable amount of time for the case.
   
6. The court found that the issues involved in the case were novel and complex. The attorneys had to have legal expertise on the ESA, and scientific knowledge on the Palila and its ecosystem. Thus, the court held that the hourly rate proposed for each attorney involved was reasonable:
   a) The plaintiffs proposed a $175 hourly rate for Mr. Sherwood. In 1967, Mr. Sherwood had graduated from Stanford Law School. Subsequently, he was admitted to both the Hawai‘i State Bar and the California State Bar. Additionally, Mr. Sherwood had been practicing law for over ten years. Finally, Mr. Sherwood submitted affidavits from reputable attorneys declaring Mr. Sherwood’s expertise in complex federal litigation and environmental law. The attorneys proposed a rate between $150 to $250. The court found that these rates were comparable to court-awarded fees in public interest cases. The court held that a $175 hourly rate for Mr. Sherwood was reasonable.
   b) The plaintiffs claimed that a $125 hourly rate was reasonable for Mr. Hunt. Mr. Hunt graduated from Columbia University School of Law and had practiced law in Hawai‘i for over ten years. Mr. Hunt’s standard fee for noncontingency cases was $125 per hour. In addition, the plaintiffs submitted affidavits from attorneys claiming that a $125 hourly rate was reasonable. Therefore, the court held that the $125 hourly rate was a reasonable amount for Mr. Hunt.
   c) The plaintiffs suggested a $75 hourly rate for Mr. Taniguchi. The plaintiffs had submitted affidavits from attorneys who declared that $75 was a reasonable hourly rate for an associate attorney two years out of law school. The court found that this was a reasonable hourly rate for Mr. Taniguchi.
   
7. The plaintiffs had filed with the Clerk of Court a Bill of Costs in the amount of $5,647.82. The plaintiffs sought an additional $11,169.36 for depositions taken in the case, but not used in the trial, and travel expenses of Mr. Sherwood and expert witnesses. The court found that the additional money requested by the plaintiffs was reasonable.
   
8. Accordingly, the court awarded to Mr. Sherwood a fee in the amount of $135,362.50, Mr. Hunt a fee in the amount of $1,255.00, and Mr. Taniguchi a fee in the amount of $1,987.50. The total reasonable attorneys’ fees was $138,575.00. In addition, the court granted the plaintiffs’ request for $11,169.36.