Palila v. Hawaii Dept. of Land and Natural Resources, No. 79-4636
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before SKOPIL, FLETCHER and PREGERSON; SKOPIL |
| Citation | 639 F.2d 495 |
| Decision Date | 09 February 1981 |
| Docket Number | No. 79-4636 |
| Parties | , 11 Envtl. L. Rep. 20,446 PALILA, (Psittirostra bailleui), an endangered species et al., Plaintiffs- Appellees, v. HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES et al., Defendants-Appellants. |
Page 495
al., Plaintiffs- Appellees,
v.
HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES et al.,
Defendants-Appellants.
Ninth Circuit.
Decided Feb. 9, 1981.
Edwin P. Watson, Deputy Atty. Gen., Honolulu, Hawaii, for defendants-appellants.
Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., for plaintiffs-appellees.
Appeal from the United States District Court for the District of Hawaii.
Before SKOPIL, FLETCHER and PREGERSON, Circuit Judges.
SKOPIL, Circuit Judge:
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
Page 496
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.
The Palila bird is a finch-billed member of the Hawaiian Honeycreeper family (Drepanididae) and is found only in Hawaii. It has been classified as an endangered species since 1967. Although the exact population trends of the Palila are not known, experts agree that the number is dangerously close to the bird's extinction level.
The Palila's critical habitat was officially designated in 1977. The habitat encompasses only about 10% of the bird's historical range and is situated in the mamane-naio forest high on the slopes of Mauna Kea. About 30% of the designated habitat contains no Palila but was included to allow for population expansion and flock movement.
For the last thirty years, the state of Hawaii has maintained herds of feral sheep and feral goats in a game management area on the slopes of Mauna Kea. The reserve is maintained and managed by the Hawaii Department of Land and Natural Resources for sport-hunting purposes. The animals are free to roam and to occupy the Palila's habitat. The sheep and goat population varies year to year, due to the "interplay between hunter pressure and defendants' game management policies." 471 F.Supp. at 989. In June 1979 the goat population in the critical habitat was between 200-300 and the sheep numbered about 600.
The browsing sheep and goats have a destructive impact on the mamane-naio ecosystem. The animals feed on mamane leaves, stems, seedlings and sprouts, and prevent regeneration of the forest. The herds' practice of bedding down near the tree line and feeding in flocks at lower levels denudes large areas of the forest. The tree line is receding as the animals move down the mountain in search of food. Fencing experiments conducted by the defendants in the critical habitat showed that in the absence of the sheep and goats, the forest regenerated.
The U.S. Fish and Wildlife Service has, since 1975, listed the Palila as one of its "high priority species." 40 Fed.Reg. 21499, 21501 (1975). A Palila Recovery Team was established pursuant to the Act to study the bird and devise a plan to save it from extinction. The team members included two wildlife biologists employed by the defendants and a Professor of Zoology from the University of Hawaii. The product of the team's work, the Palila Recovery Plan, was officially approved by the U.S. Fish and Wildlife Service and led to establishment of the bird's critical habitat. The plan concluded that the eradication of the sheep and goats was necessary to achieve the regeneration of the forest and restoration of the Palila.
The Hawaii Department of Land and Natural Resources initiated its...
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