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

Citation: 11 ELR 20446
No. No. 79-4636, 639 F.2d 495/15 ERC 1741/(9th Cir., 02/09/1981) Aff'd

Affirming the lower court's decision, 9 ELR 20426, the court agrees that Hawaii's game management practice of allowing feral goats and sheep in the critical habitat of the endangered Palila bird constituted an unlawful "taking" under the Endangered Species Act (ESA). The feral animals destroy the Palila's habitat, and appellants' management plan is inadequate in that it fences portions of the habitat but does not remove the animals. The district court granted summary judgment and ordered appellants to remove entirely the feral goats and sheep from the habitat. The Ninth Circuit Court of Appeals first finds that since the Palila remains an endangered species, there are no disputed facts that made summary judgment inappropriate. Second, the management plan, which would maintain feral animals in the critical habitat, is a taking in violation of the ESA because it was shown without dispute that the Palila is endangered by the activity. Thus, the management plan is prohibited by the Act because only complete exclusion of the feral animals can prevent harm to the Palila.

Counsel for Appellants
Edwin T. Watson, Attorney General
State Capitol, Honolulu HI 96813
(808) 548-4740

Counsel for Appellees
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, Leavitt & Hunt
Suite 433, Dillingham Bldg., 735 Bishop St., Honolulu HI 96813
(808) 521-7474

Before SKOPIL, FLETCHER and PREGERSON, Circuit Judges.