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

ELR Citation: 18 ELR 21199
Nos. No. 87-2188, 852 F.2d 1106/(9th Cir., 07/22/1988) Aff'd

The court holds that Hawaii's introduction of mouflon sheep into critical habitat of the endangered Palila bird is an unlawful taking under the Endangered Species Act (ESA). The state introduced the sheep into the area for sport hunting, but the sheep feed on trees that provide critical habitat for the palila. The court first holds that the definition of "harm" in the federal ESA regulations includes habitat degradation that could result in extinction. The district court's ruling was consistent with the Secretary of the Interior's definition, which is entitled to deference if it is reasonable and not in conflict with the intent of Congress. The court holds that the Secretary's definition is consistent with the plain language and legislative history of the ESA. The court holds that permitting mouflon sheep to remain in Palila habitat is an unlawful taking under ESA §9. The court holds that the district court's findings that the Palila could not coexist even with a huntable number of mouflon sheep and that mouflon sheep destroy the Palila's habitat were not clearly erroneous. The court does not address the question of whether harm under the ESA includes habitat degradation that merely retards recovery.

[The district court's decision is published at 17 ELR 20514. Related opinions are published at 9 ELR 20426, 11 ELR 20446, and 16 ELR 20669.]

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

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

Before Schroeder & Noonan, JJ.