Palila v. Hawai‘i Department of Land and Natural Resources (V)

649 F. Supp. 1070 (D. Haw. 1986)
Plaintiffs: Plaintiffs' Attorneys:
  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
Defendants: Defendants Attorneys:
  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
Court: United States District Court of Hawai‘i
Opinion by: Judge Samuel P. King
Other Jurists: Court Below:
    N/A

N/A

Key laws involved:
  • Endangered Species Act of 1973 (“ESA”), §§ 3(19), 9(a)(1), 16 U.S.C. §§ 1532(19), 1538(a)(1).
Summary:
  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 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.