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Palila v. Hawaii Dep't of Land & Natural Resources

Citation: 9 ELR 20426
No. No. 78-0030, 471 F. Supp. 985/14 ERC 1204/(D. Haw., 06/08/1979)

The court issues a declaratory judgment that defendants are "taking" endangered wildlife in violation of § 9 of the Endangered Species Act of 1973 by maintaining feral sheep and goat populations for sport hunting which are destroying the critical habitat of the Palila, an endangered bird, on the upper slopes of Mauna Kea on the Island of Hawaii. The court rejects the contention that the Tenth Amendment bars federal regulation of the Palila because it is endemic to Hawaii. The Act is a valid exercise of both the federal commerce power and the congressional power to implement international treaties and properly includes the Palila within the scope of its regulatory program. The court reaches its conclusion that defendants are violating § 9 of the Act by noting that the statute defines the term "take" synonymously with the term "harm" which in turn is defined by Department of the Interior regulations to include a "significant environmental modification" which actually injures or kills endangered wildlife. Finally, the court determines that the defendants are not immune from suit under the Eleventh Amendment since this action seeks only prospective injunctive relief and the State of Hawaii has implicitly consented to subject itself to such suits by choosing to participate fully in the regulatory program established by the Endangered Species Act. The court concludes that defendants may be ordered to adopt an affirmative program to eradicate the feral sheep and goat populations from the Palila's critical habitat.

Counsel for Plaintiffs
William S. Curtiss, Michael R. Sherwood
Sierra Club Legal Defense Fund, Inc.
311 California St., Suite 311, San Francisco CA 94104
(415) 398-1411

William S. Hunt
Hart, Leavit, Hall & Hunt
735 Bishop St., Suite 433, Honolulu HA 96813
(808) 521-7471

Counsel for Defendants
Wayne Minami, Attorney General; Lester Wong, Ass't Attorney General
State Capitol, Honolulu HA 96813
(808) 548-4740