- Palila (Loxioides bailleui, formerly Psittirostra bailleui), an endangered
species
- Sierra Club
- National Audubon Society
- Hawai‘i Audubon Society
- Alan Ziegler
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- Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco,
CA
- William S. Hunt, Paul Johnson & Alston, Honolulu, HI
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- Hawai‘i Department of Land and Natural Resources
- Susumu Ono, Chairman of the Hawai‘i Board of Land and Natural
Resources
- Sportsmen of Hawai‘i, Inc.
- Hawai‘i Island Archery Club
- Hawai‘i Rifle Association
- Gerald Kang
- Kenneth Funai
- John Wong
- Irwin Kawano
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- Corinne Watanabe, Atty. Gen., Honolulu, HI
- Edwin P. Watson, Deputy Atty. Gen., Honolulu, HI
- Katsuya Yamada, Hilo, HI
- John S. Carroll, Honolulu, HI
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- 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.
- The Palila is a finch-billed member of the Hawaiian Honeycreeper family,
and is found only in Hawai‘i. In 1967, the Palila was listed as
an endangered species. In 1977, the U.S. Fish and Wildlife Service officially
designated the Palila’s critical habitat after a unanimous recommendation
by the Palila Recovery Team. The designated Palila critical habitat
included the existing mamane-naio forest on Mauna Kea on the Island
of Hawai‘i. The mamane-naio ecosystem is essential for the Palila’s
survival because it depends on these trees for food, shelter, and nest
sites. Moreover, the known population of the Palila coincides and is
limited to the mamane and naio forests on the Island of Hawai‘i.
At the time of this action, the total Palila population was 2,200, however,
there was no clear population trend indicating that the Palila population
was increasing.
- In the 1950s, the defendants began to maintain the feral sheep and
goat populations within a State Game Management Area established on
the slopes of Mauna Kea for sport and hunting purposes. The feral sheep
and goats use the mamane leaves, stems, seedlings and sprouts, and naio
leaves as a food source. As a result, the presence of the feral sheep
and goats prevented the regeneration of the mamane-naio forest, thus
decreasing the Palila’s habitat. Although the mamane-naio forest
had improved over thirty years, the regeneration of the mamane forest
had been limited to areas with human activity or beyond the reach of
the feral sheep and goats. Additionally, the feral sheep and goats’
activities caused the tree line to recede down the slopes of Mauna Kea.
- 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.
- The issue the court considered was whether the mouflon sheep were
“harming” the Palia in violation of the ESA.
a) The defendants contended that “harm” only includes actual
injury to the endangered species from habitat destruction or modification.
To find an actual injury, there must have been a decline in the Palila
population. Therefore, there was no actual harm to the Palila because
their population had remained static. The court disagreed with the defendants’
interpretation of “harm” and interpreted its meaning to
include actions that significantly impair essential behaviors that result
in an actual negative impact or injury to the endangered species, which
threatens its continued existence or recovery. Thus, a showing of “harm”
does not require a showing that there was an actual decline in the Palila
population. The court also pointed out that the Palila population is
close to the critical population mark. Accordingly, the court held that
a habitat modification that precludes a population recovery causes an
injury to the species in violation of section 9 of the ESA.
b) Studies conducted by Dr. Giffin indicated that the mamane was the
most important food source for the mouflon sheep. The mouflon sheep
eat the leaves, stems, seedlings, and basal shoots of the mamane tree.
The defendants argued that the mouflon sheep, however, did not have
the same adverse effects as the feral sheep on the Palila population
because the mouflon sheep did not exclusively depend on the mamane tree.
Various studies, however, proved that the feeding habits of the mouflon
sheep and feral sheep were the same. Hence, the presence of the mouflon
sheep in the Palila critical habitat had the same detrimental effects
as the feral sheep on the regeneration of the mamane forest.
c) The court found that the adverse habitat effect would either decrease
the Palila population, or prevent the recovery of the Palila population.
Therefore, the court held that the presence of the mouflon sheep in
the Palila critical habitat was harming the Palila as defined in the
ESA regulations.
- The defendants asserted that the forests on Mauna Kea could be used
for both endangered species conservation and sport-hunting purposes.
The defendants argued that since they have removed the feral sheep,
the mamane forest has regenerated. In addition, the defendants contended
that they were taking steps to minimize the effect of the mouflon sheep
on the mamane forest. Finally, the defendants pointed out that the effect
of the mouflon sheep on the mamane forest would be unknown for several
years. Until then, the mouflon sheep should be allowed to remain on
Mauna Kea under a strict management program. The court disagreed with
the defendants’ arguments. Whether the mamane forest would regenerate
was unknown, and if it would regenerate, the Palila would not benefit
from the mamane re-growth for twenty-five to fifty years. Additionally,
the ESA does not allow for a balancing approach in conserving endangered
species. Once it had been determined that the mouflon sheep were harming
the Palila, the ESA does not allow for alternative management strategies.
The experimental approach that the defendants proposed could have resulted
in the extinction of the Palila. The court held that it could not take
such a risk.
- Accordingly, 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.
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