Palila v. DLNR

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1979

PALILA (Psittirostra bailleui), an endangered species, Sierra Club, a Non-Profit Corporation, National Audubon Society, a Non-Profit Association, Hawaii Audubon Society, a Non-Profit Association, and Alan C. Ziegler, Plaintiffs,
v.
HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES, and Susumu Ono, in his capacity as Chairman of the Hawaii Board of Land and Natural Resources, Defendants.

Civ. No. 78-0030.

United States District Court, D. Hawaii.

June 6, 1979.

STATEMENT OF THE CASE

The Palila (Psittirostra bailleui) seeks the protection of this Court from harm caused by feral sheep and goats.

An action for declaratory and injunctive relief was filed in the name of the Palila by the Sierra Club, National Audubon Society, Hawaii Audubon Society, and Alan C. Ziegler, suing as next friends and on their own behalf, as plaintiffs. The Department of Land and Natural Resources of the State of Hawaii and the Chairman of the Board of Land and Natural Resources,[1] who is the executive officer of the Department, are named as defendants. The action is brought pursuant to the Endangered Species Act of 1973 (Act), 16 U.S.C. § 1531, et seq. (1974). The matter is before me on plaintiffs’ motion for summary judgment.

Plaintiffs contend that defendants are “taking” the Palila in violation of Section 9 of the Act, 16 U.S.C. § 1538(a)(1)(B), by maintaining destructive populations of feral sheep and goats in the Palila’s critical habitat on the slopes of Mauna Kea on the Island of Hawaii. Defendants deny that the undisputed facts support the alleged violation.

SUMMARY

The Palila is an endangered species under the Endangered Species Act.

The Endangered Species Act is a valid exercise of Congressional power pursuant to the treaty-making power and the Commerce Clause of the Constitution.

Defendants are violating the Endangered Species Act by maintaining feral sheep and goats in the Palila’s critical habitat on the slopes of Mauna Kea on the Island of Hawaii.

Defendant Susumu Ono, in his capacity as Chairman of the Board of Land and Natural Resources, may be ordered to adopt a program at state expense designed to eradicate the feral sheep and goats from the Palila’s critical habitat and may be enjoined from taking any action which has the effect of increasing or maintaining the existing population of feral sheep and goats in the Palila’s critical habitat.

Defendant Hawaii Department of Land and Natural Resources may be similarly ordered and enjoined because the Endangered Species Act expressly abrogates sovereign immunity under the Eleventh Amendment and because the State of Hawaii has impliedly consented to be sued under that Act.

Counsel for the parties shall attempt to agree upon a form of judgment consistent with the foregoing for submission to the Court within 30 days or such further time as may be requested and allowed, or in the event of a failure to so agree, shall submit their respective forms of judgment within the time set.

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1981

PALILA, (Psittirostra bailleui), an endangered species et al., Plaintiffs-Appellees,
v.
HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES et al., Defendants-Appellants.

No. 79-4636.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 1980. Decided February 9, 1981.

INTRODUCTION

This action was brought on behalf of an endangered bird, the Palila, pursuant to the Endangered Species Act, 16 U.S.C. § 1531 et seq. (1974). The district court held that no disputed material facts existed and that the State of Hawaii’s game management practices involving feral goats and sheep in the Palila’s habitat constituted an unlawful “taking” as defined by the Act. 471 F.Supp. 985 (D. Hawaii 1979). The court granted summary judgment in favor of plaintiffs and against the defendants Hawaii Department of Land and Natural Resources  and Susumu Ono, Chairman of the Hawaii Board of Land and Natural Resources. The court ordered that the sheep and goats be permanently removed from the bird’s critical habitat.

Two issues are raised on appeal: (1) are there disputed material facts that preclude summary judgment; and (2) did the trial court err in finding that Hawaii’s actions constituted a “taking” as defined by the Act?

We affirm.

CONCLUSION

No genuine issues of material fact precluded summary judgment. The state violated the Endangered Species Act by maintaining feral sheep and goats in the Palila’s habitat.

The judgment of the district court is AFFIRMED.

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1986

PALILA (Loxioides bailleui, formerly Psittirostra bailleui), an endangered species; Sierra Club, a non-profit corporation; National Audubon Society, a non-profit association; and Alan C. Ziegler, Plaintiffs,
v.
HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES; and Susumu Ono, in his capacity as chairman of the Hawaii Board of Land and Natural Resources, Defendants,
and
Sportsmen of Hawaii, Inc., Hawaii Island Archery Club, Hawaii Rifle Association, Gerald Kang, Kenneth Funai, John Wong and Irwin Kawano, Defendants/Intervenors.

Civ. No. 78-0030.

United States District Court, D. Hawaii.

November 18, 1986.

OPINION

SAMUEL P. KING, Senior District Judge.

In this proceeding, I face the competing interests of mouflon sheep hunters on the slopes of Mauna Kea and of the endangered bird species Palila, which makes its home there.

Earlier proceedings involved a similar conflict but were limited to feral[1] sheep and goats. In Palila v. Hawaii Department of Land and Natural Resources, 471 F.Supp. 985 (D.Hawaii 1979) (Palila I), I found that the feral sheep and goats were “harming” the Palila in contravention of the Endangered Species Act and ordered the State of Hawaii to remove all feral sheep and goats from the critical habitat of the Palila.[2]

At that time, Jon G. Giffin, Wildlife Biologist in the Division of Forestry and Wildlife in the Department of Land and Natural Resources, was studying mouflon sheep and their impact on the critical habitat of the Palila. In deference to Mr. Giffin, the State of Hawaii, and the claims of hunters that mouflon sheep did not present the same potential for harm to the Palila’s critical habitat as did the feral sheep, the plaintiffs specifically excluded mouflon sheep from their prayers for relief.

The mouflon sheep study has since been completed. On the basis of the findings, plaintiffs refiled an action, essentially identical to their original action, but this time aimed at mouflon sheep. They seek a mandatory injunction requiring the State of Hawaii to remove all mouflon sheep from the critical habitat of the Palila. The only issue before me, then, is whether the mouflon sheep are “harming” the Palila, as prohibited by the Endangered Species Act and its corresponding regulations.

CONCLUSION

In conclusion, I find that the presence of mouflon sheep in numbers sufficient for sport-hunting purposes is harming the Palila. They degrade the mamane ecosystem to the extent that there is an actual present negative impact on the Palila population that threatens the continued existence and recovery of the species. Once this determination has been made, the Endangered Species Act leaves no room for balancing policy considerations, but rather requires me to order the removal of the mouflon sheep from Mauna Kea.

The mamane forest can be expected to recover slowly when released from the current browsing pressures. At some point in the future, the mamane on Mauna Kea may have recovered sufficiently to support Palila beyond its current endangered population. Likewise, at some future date, the forest and the bird population may be sufficiently stable to allow the coexistence of some mouflon sheep with Palila. At present, however, the Endangered Species Act mandates the protection of the Palila to the extent possible, in the hope that this bird does not join the many other indigenous species that have disappeared from these islands.

The foregoing constitutes my findings of facts and conclusions of law in accordance with Fed.R.Civ.P. 52. Based on these findings and conclusions, the plaintiffs are to draw up an appropriate order and send it to this court, through the defendant State and the defendant/intervenors. The order shall reflect the conclusion of this court that the mouflon sheep are to be removed from the critical habitat of the Palila on Mauna Kea. In addition, the order shall be combined with my previous order of 1979 mandating the removal of the feral sheep and goats. Finally, it shall also specifically order the removal of the hybrid mouflon/feral sheep, which the State has, in practice, been eliminating along with the feral sheep.

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1988

PALILA (Loxioides bailleui, formerly Psittirostra bailleui), an endangered species; Sierra Club; National Audubon Society, a non-profit association; Hawaii Audubon Society, a non-profit association; Alan C. Ziegler, Plaintiffs-Appellees,
v.
HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES; Susumo Ono in his capacity as chairman of the Hawaii Board of Land and Natural Resources, Defendants-Appellants.
PALILA (Loxioides bailleui, formerly Psittirostra bailleui), an endangered species; Sierra Club; National Audubon Society, a non-profit association; Hawaii Audubon Society, a non-profit association; Alan C. Ziegler, Plaintiffs-Appellees,
v.
HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES; Susumo Ono in his capacity as chairman of the Hawaii Board of Land and Natural Resources, Defendants, and
Hawaii Rifle Association; Gerald Kang, Defendants-Intervenors-Appellants.

Nos. 87-2188, 87-2189.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 12, 1988. Decided July 22, 1988.

FACTS AND PROCEEDINGS

In 1978 the Sierra Club and others brought an action under the Act on behalf of the Palila, claiming that the Department’s practice of maintaining feral goats and sheep (animals that originally were domesticated but were allowed to run wild) in the Palila’s critical habitat[1] constituted an unlawful “taking” under the Act. The district court agreed and ordered the Department to remove the animals because it found that the goats and sheep destroyed the mamane-naio woodlands upon which the Palila depend.[2] Palila v. Hawaii Dept. of Land & Natural Resources (“Palila I”), 471 F.Supp.985 (D.Haw.1979). This court affirmed. Palila v. Hawaii Dept. Land & Natural Resources (“Palila II”), 639 F.2d 495 (9th Cir.1981).

In 1984 the Sierra Club reopened the 1978 proceeding by moving to amend its original complaint to add mouflon sheep as destructive animals to be removed from the Palila’s habitat. The mouflon sheep had been introduced by the Department between 1962 and 1966 for the enjoyment of sport hunters. Apparently, they had not been the target of the original complaint because research into their effect upon the Palila’s habitat had not been completed. The mouflon sheep, like the feral sheep and goats before them, feed on the mamane trees.

In November 1986 the district court ruled in favor of the Sierra Club. Palila v. Hawaii Dept. of Land & Natural Resources (“Palila III”), 649 F.Supp.1070 (D.Haw.1986). It found that presence of mouflon sheep “harmed” the Palila within the meaning of 50 C.F.R. § 17.3’s definition of “harm” in two ways:[3] (1) the eating habits of the sheep destroyed the mamane woodland and thus caused habitat degradation that could result in extinction; (2) were the mouflon to continue eating the mamane, the woodland would not regenerate and the Palila population would not recover to a point where it could be removed from the Endangered Species list.

The Department and intervenors filed timely appeals. We granted the United States amicus curiae status to represent the view of the Secretary that Judge King’s order should be affirmed, but for reasons different than those stated in his opinion.

CONCLUSION

The district court’s finding of habitat degradation that could result in extinction constitutes “harm.” The district court’s finding of a “taking” was not clearly erroneous. We do not reach the issue of whether the district court properly found that harm included habitat degradation that prevents recovery of an endangered species.

AFFIRMED.

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One Response to Palila v. DLNR

  1. Robert DeCoito says:

    I have been hunting on Mauna Kea from the time before the eradication started, since 1976. Years of observations/hunting and a recent front page article (Hawaii Tribune Herald) 4/13 that mentions the palila population has declined 66% during the past 10 years has me convinced of what I suspected all along. It would be simply wrong to say that the sheep is the cause of it’s decline. Impossible!!! The higher slopes of Mauna Kea at the tree line where the Palila lives have been over grown with mamane trees , other native and non native trees and weeds with very little or no signs of sheep for at least 20 years. I was once told many years ago by a bird breeder that training exercises and bomb explosions at PTA are most likely the cause of the decline because it affects the birds normal nesting cycle. Was there ever any study on this? Another problem these days may be climate change, If you noticed that Pohakuloa flats have become a desert like landscape you are right. This is something that I have never seen happen in 30+ years of hunting on Mauna Kea. Game Bird populations were very very low during the past 2012-2013 season. Has there been a study on this dry conditions and the affect it may have on the Palila? If the State and environmental groups keep looking the wrong way, we all lose. We all lose money for useless eradication efforts, we lose the palila forever and we lose the sheep, a way of life, and bond we as hunters get with there children, family and friends that are unequal in any sport. Thank you for reading and your consideration on this matter.

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