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

Citation: 17 ELR 20514
No. No. 78-0030, 649 F. Supp. 1070/(D. Haw., 11/18/1986) Injunction requiring removal of mouflon sheep granted

The court holds that Hawaii's maintenance of mouflon sheep in the critical habitat of an endangered species constitutes a taking under the Endangered Species Act (ESA). The court first rules that the definition of harm in the ESA prohibits activities that significantly modify or degrade a habitat resulting in actual injury to an endangered species. The court rejects defendants' argument that the Secretary of the Interior's amendment of the definition of "taking" in 1981 redefined the meaning of the word "harm," holding that a showing of actual injury does not require plaintiff to show a present pattern of decline in the population of the endangered palila bird. The Secretary explained that the redefinition did not limit harm to direct physical injury to an individual member of the endangered species. Moreover, the species' proximity to its critical population mark should not require further steps toward its extinction before ESA § 9 allows the court to protect the species. The court next holds that mouflon sheep, introduced by the state into the area in an attempt to upgrade the existing feral sheep population, harm the palila bird within the meaning of the ESA. The sheep prefer the same habitat and food as does the endangered species, and have a tendency to overbrowse the habitat. Impacts from the overgrazing are readily apparent in the mountain area that is the critical habitat of the palila bird. The court holds that a multiple-use approach allowing both the mouflon sheep and the palila bird to coexist on the mountain is inappropriate. There is no clear evidence of forest regeneration since this court ordered the removal of feral sheep in 1982. In addition, the court holds, the ESA prohibits a balancing of interests for multiple-use considerations.

Counsel for Plaintiffs
Michael R. Sherwood
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Defendants
Edwin P. Watson, Ass't Attorney General
State Capitol
Honolulu HI 96813
(808) 548-4740