Palila v. Hawaii Dept. of Land & Natural Resources, Civ. No. 78-0030.

• Decision Date: 18 November 1986
• Docket Number: Civ. No. 78-0030.
• Citation: 649 F. Supp. 1070
• Parties: 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.
• Court: U.S. District Court — District of Hawaii

649 F. Supp. 1070

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.

Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., William S. Hunt, Paul, Johnson & Alston, Pacific Tower, Honolulu, Hawaii, of counsel, for plaintiffs.

Edwin P. Watson, Deputy Atty. Gen., Corinne Watanabe, Atty. Gen., State of Hawaii, Honolulu, Hawaii, for defendants.

Katsuya Yamada, Hilo, Hawaii, for Sportsmen of Hawaii, Inc., Hawaii Island Archery Club, Gerald King, Kenneth Funai, and John Wong.

John S. Carroll, Honolulu, Hawaii, for Hawaii Rifle Ass'n and Irwin Kawano.

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 feral¹ 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.³

FACTUAL BACKGROUND

A. The Bird

The Palila, Loxioides bailleui, is a six-inch long finch-billed member of the Hawaiian honeycreeper sub-family (Drepanidinae). It has a golden-yellow head, black lores,⁴ a whitish abdomen, and a gray back.

Palila, which are endemic to Hawaii, are today found only in a small area on the upper slopes (approximately 6600 feet to treeline, 9400 feet) of Mauna Kea on the island of Hawaii. This represents approximately ten percent of the bird's historical range. When first officially discovered in 1876, Palila lived only on the island of Hawaii.⁵ It was common in north and south Kona and on the slopes of Mauna Kea in the Hamakua and Hilo Districts. By 1894, the birds were no longer found in Kona. This extirpation may have resulted from avian malaria carried by mosquitoes whose populations increased rapidly with ranching activities in the late nineteenth century.

By the mid-twentieth century, the range had shrunk to its present area, largely due to habitat destruction from grazing ungulates (hoofed mammals). Feral cattle, horses, sheep, and pigs were established on Mauna Kea by the early 1800s. However, the feral cattle and horses were removed in the 1920s and 1930s, and the feral pigs do not appear to have a significant adverse effect on the mamane ecosystem. Feral goats appeared in some numbers in the 1930s, and mouflon sheep were introduced in 1963. As discussed more fully in Palila I, 471 F.Supp. at 989-90, the feral goats and sheep, which the Department of Land and Natural Resources maintained for sport hunting purposes, had a devastating effect on the mamane forest. The ensuing negative impact on the Palila habitat and on the Palila prompted my order for the removal of the feral sheep and goats from the bird's critical habitat.

The Palila was listed as an endangered species by the Secretary of the Interior in 1967, 32 Fed.Reg. 4001 (1967), and it remains on the list of endangered species today. 50 C.F.R. § 17.11 (1985). The primary reasons for listing the Palila, in addition to the bird's low population, were that a significant portion of its historical range was no longer occupied and that its present habitat was being adversely modified by feral ungulate browsing.⁶

In 1979, at the time of the Palila I decision, the Palila's estimated population was between 1400 and 1600 birds, which was "dangerously close to that minimum number of individuals below which a population cannot drop if the species is to survive." 471 F.Supp. at 988.

At present, there are approximately 2200 Palila in existence.⁷ Although the population is somewhat higher now than in 1979, no clearly defined pattern exists concerning population abundance. Most experts agreed that the bird has not experienced any significant "upward trend." At best, the population remains "static" at a level where the bird is still biologically endangered.⁸

The Palila is totally dependent on the mamane and mamane-naio forests for its existence. The bird's preferred food is the pods of the mamane tree (Sophora chrysophylla), but it will also eat mamane flowers, buds, and leaves, and berries of the naio tree (Myoporum sandwicense).⁹ The bird also depends on the mamane for shelter and nesting sites.

The highest densities of Palila are found in well-developed tall pure mamane ecosystems with a native understory. Population studies have also shown a dependence of Palila on wider belts of woodland, i.e., a mamane forest that stretches over a wider altitudinal gradient. This allows the bird to take advantage of seasonal variations in the mamane fruits and flowers, providing it with the most ample and stable food source throughout the year.¹⁰

In 1977, the U.S. Fish and Wildlife Service officially designated the Palila's critical habitat as a 200 km2 ring around the upper slopes of Mauna Kea. 50 C.F.R. § 17.95 (1985). This area contains the entire known population of Palila and essentially encompasses the existing mamane and mamane-naio forests on Mauna Kea and coincides with the remaining ten percent of the Palila range.¹¹ Because of the Palila's various habitat requirements, however, the bird is not spread evenly throughout the critical habitat. The bird is only found in 140 km2 of its 200 km2 habitat, and 75-80% of the population is located in a 10 km2 area close to Puu Laau, which not surprisingly, has the most developed mamane ecosystem on the mountain.¹²

B. The Sheep

The European mouflon (Ovis musimon) is a native of Corsica and Sardinia. The sheep are light tan to rich brown, with white on the tail, rump, and underparts, and they have large horns of excellent trophy quality. The State Division of Fish and Game introduced the mouflon onto Mauna Kea with the original hope that they would upgrade the existing feral sheep and modify some of their undesirable characteristics.¹³ A total of 99 hybrid sheep and 94 pure mouflon were released between 1962 and 1966. Due to political pressures from hunters, however, the hybridization project was never completed.

The defendant Department of Land and Natural Resources presently maintains the mouflon population for sport-hunting purposes within the Mauna Kea Game Management Area.¹⁴ (This state game management area happens to include most of the Palila's critical habitat.) The mouflon has become exceedingly popular with local hunters because of its excellent sporting, meat, and trophy qualities. As of March 1986, there were approximately 501 mouflon sheep within the Game Management Area, including some adjoining ranchland. Most of these sheep (412) were found within the Palila critical habitat, although there were no sheep presently located near Puu Laau, the area of highest Palila density.¹⁵

THE LAW

Under the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543 (1982), the Secretary of the Interior is authorized to declare species of animal life "endangered"¹⁶ and to identify the "critical habitat"¹⁷ of these species. Once a species has been listed as endangered, section 9 of the Act makes it unlawful for any person to "take" any such species. 16 U.S.C. § 1538(a)(1)(B). As defined by the Act, the term "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). At issue in this litigation is whether the state's maintenance of mouflon sheep on Mauna Kea "harms" the Palila so as to result in a "taking."

The Secretary of the Interior has defined "harm" to mean:

an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

50 C.F.R. § 17.3 (1985).

I understand this to prohibit activities that significantly modify or degrade the habitat, resulting in actual injury to the wildlife species. This would include activities that significantly impair essential behavioral patterns to the extent that there is an actual negative impact or injury to the endangered species, threatening its continued existence or recovery.

A. The Secretary's Redefinition of Harm

The...