Palila v. Hawaii Dept. of Land & Natural Resources

• Decision Date: 06 June 1979
• Docket Number: Civ. No. 78-0030.
• Citation: 471 F. Supp. 985
• Parties: 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.
• Court: U.S. District Court — District of Hawaii

471 F. Supp. 985

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.

COPYRIGHT MATERIAL OMITTED

Michael R. Sherwood, William S. Curtiss, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., William S. Hunt, Hart, Leavitt & Hunt, Honolulu, Hawaii, for plaintiffs.

Wayne Minami, Atty. Gen., State of Hawaii, by Lester G. L. Wong, Deputy Atty. Gen., Honolulu, Hawaii, for defendants.

DECISION

SAMUEL P. KING, District Judge.

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.

FACTUAL BACKGROUND

The six-inch long Palila is a finch-billed member of the Hawaiian Honeycreeper family (Drepanididae). It is found only in Hawaii. The Palila's present population numbers between 1,400 and 1,600 birds. The range of the entire known population coincides with and is limited to the remaining mamane (Sophora chrysophylla) and naio (Myoporum sandwicense) forests on the slopes of Mauna Kea on the Island of Hawaii between the elevations of 6,400 feet and 9,500 feet—about 10 percent of the bird's historical range.

The Palila has been listed by the Secretary of the Interior as an endangered species since 1967, when it was first so identified pursuant to the predecessor of the present Act. 32 Fed.Reg. 4001 (1967). Out of a total of 36 bird species listed at the time, 20 species, including the Palila, were endemic Hawaiian birds. Id. The Palila remains on the latest endangered species list. 50 C.F.R. § 17.11 (1978). Experts agree that the Palila population is dangerously close to that minimum number of individuals below which a population cannot drop if the species is to survive.² In fact, in 1975, the U.S. Fish and Wildlife Service named the Palila as one of the 10 "high priority species" whose "critical habitat"³ should be determined "as rapidly as possible" pursuant to 16 U.S.C. § 1536. 40 Fed. Reg. 21499, 21501 (1975). The U.S. Fish and Wildlife Service officially designated the Palila's critical habitat in 1977, 50 C.F.R. § 17.95, following the unanimous recommendation of the Service-appointed Palila Recovery Team.⁴

The Palila's critical habitat encompasses the remaining 10 percent of the Palila's historical range.⁵ This includes the existing mamane-naio forest on Mauna Kea. About 20 to 30 percent of the critical habitat presently contains no Palila. However, the Palila requires the entire designated habitat, not only to allow for population expansion, but also to allow for movement of the Palila flocks as part of their normal life cycle.⁶

The mamane-naio forest is essential for the Palila's survival.⁷ The bird has evolved in the mamane-naio ecosystem over the centuries and is uniquely adapted to feeding upon the mamane. The mamane trees provide food, shelter and nest sites for the Palila. The naio trees are of secondary importance as nest sites.

Since 1950, defendants have maintained populations of feral⁸ sheep (Ovis aries) and feral goats (Capra hircus) within a State Game Management Area established on the slopes of Mauna Kea by the Department for sport-hunting purposes. Unfortunately for the Palila, the State's Mauna Kea Game Management Area includes most of the Palila's critical habitat.

The feral goat population in the critical habitat currently numbers between 200 to 300 and the feral sheep population numbers about 600. The sheep population has fluctuated greatly, from an estimated 40,000 sheep in 1936, to an estimated 550 sheep as of December 1978, as a result of the interplay between hunter pressure and defendants' game management policies.⁹

Defendants are fully aware of the destructive impact that the browsing game animals have had on the mamane-naio ecosystem.¹⁰ The mamane leaves, stems, seedlings and sprouts, and, to a lesser extent, naio leaves, are an important food item in the diet of these feral sheep and goats. By consuming seedlings and shoots, the animals prevent regeneration of the forest, and thus bring about the relentless decline of the Palila's habitat.¹¹

Plaintiffs do not deny defendants' contention that the forest has improved, compared to its condition 30 years ago. However, 30 years ago, the forest had not yet recovered from extensive damage caused by a population of feral sheep that was over 10 times greater than it is today, and the limited regeneration of the mamane forest that has occurred has been only in areas, such as roadways, lower elevations, and gulches, that are shunned by the feral sheep and goats because of human activity, or because they are beyond the reach of the animals. Destruction of the mamane-naio forest continues at the upper elevations, though perhaps not as rapidly as in the 1930's or 1940's. The sheep and goats cause the tree line to recede down the slopes of Mauna Kea because of the animals' tendency to bed down above the tree line at night and to feed in flocks to about the 8,000-foot level during the day, thus denuding entire areas of mamane seedlings, shoots and other vegetation. As the tree line moves down the mountain, so do the sheep and goats.

Defendants argue that since regeneration of the forest would occur if small numbers of feral sheep and goats were allowed to remain, they should be permitted to undertake a program of "intensive management"¹² which would protect the forest while providing for hunter interests. However, looking realistically at the feasibility of such a program, I conclude that defendants' intensive management proposal would be an ineffective solution to regeneration of the forest because of inevitable hunter pressure to increase the feral sheep herd as long as any sheep remain in the forest, defendants' demonstrated susceptibility to that pressure, and the destructive effect on the forest of even a small number of sheep and goats due to their tendency to browse in flocks and denude an area totally.¹³

Furthermore, complete removal of the feral sheep and goats from the Palila's critical habitat is feasible. Sport hunters would still have opportunities to hunt these animals outside the critical habitat and other game animals within the critical habitat.¹⁴ Implementation of a removal program would be of relatively minor expense to defendants.¹⁵ Because the Palila's critical habitat lies on publicly-owned land subject to defendants' jurisdiction, the program can be effected in a fairly short period of time through the manipulation of hunting seasons and bag limits and by humane killing of any remaining animals.

Defendants refuse to adopt a removal program.¹⁶ The only concession by the Board of Land and Natural Resources has been to adopt in 1977, as a part of The Mauna Kea Plan,¹⁷ a proposal to fence around portions of the mamane forest, within which there would be a year-round hunting season for feral sheep and goats.¹⁸ To date, the defendants have taken no action to implement the fencing plan.

The Mauna Kea Plan also proposes that any game animals be eliminated only after further studies have been made; but no further studies need be done. Plaintiffs have shown (and defendants have produced no substantial evidence to the contrary) that the Palila requires all of its designated critical habitat in order to survive as a species and that the feral sheep and goats maintained by defendants are the major cause of that habitat's degradation.

LEGAL CONSIDERATIONS

Under the Endangered Species Act, this Court has jurisdiction and venue over this action,¹⁹ plaintiffs Sierra Club, National Audubon Society, Hawaii Audubon Society, and Alan C. Ziegler have standing to sue in their own names,²⁰ all conditions precedent to suit have been met,²¹ defendants are among those defined as "persons" subject to the Act,²² and the controversy is ripe for adjudication.²³

Yet defendants challenge the power of the United States to enforce the Endangered Species Act against them on behalf of the Palila.

A Tenth Amendment argument is presented in a novel setting. The Palila exists in nature only on the slopes of the Island of Hawaii in the State of Hawaii. No federal lands or federal funds are involved.²⁴ Defendants rely on Baldwin v. Montana Fish and Game Commission, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), as supporting exclusive state sovereignty over the fate of the Palila, but Baldwin is a weak reed upon which to lean in this situation as it wrestled with an entirely different question and contains dictum that may be cited on both sides of the issue.²⁵ The recent case of Hughes v. Oklahoma, ___ U.S. ___, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979), reaffirmed the dictum found in Baldwin that a state's...