Palila v. Department of Land and Natural Resources: “taking” under Section Nine of the Endangered Species Act of 1973

Author:

Durrett, Jonathan, Yuen, Christopher

Title:

Palila v. Department of Land and Natural Resources: “taking” under Section Nine of the Endangered Species Act of 1973

Periodical:

University of Hawaii Law Review

Year:

1982

Volume:

4

Pages:

181-194

Subject:

Palila Loxioides bailleui Endangered Species Act of 1973 Endangered species birds Hawaii Department of Land and Natural Resources Feral sheep Feral goats Fences Mauna Kea National Audubon Society Sierra Club

Summary:

The palila is a small, finch-beaked bird that inhabits a narrow band on the slope of Mauna Kea, on the island of Hawaii. It has also been recognized as an endangered species since the United States first began to list wildlife that were threatened with extinction. Due to its dangerously low population, the U.S. Fish and Wildlife Service (USFWS), made this bird its "highest priority" in the mid-1970s and commissioned a Palila Recovery Team in an effort to study and to determine the steps that were necessary to save this species. They declared an official designation of the palila critical habitat and implemented the recovery team's recommendations that were based on a Palila Recovery Plan. However, this plan determined that the species would not be able to survive without the regeneration of the mamane-naio forest and called for the complete removal of feral sheep from the mountain in an effort to accomplish this goal. The Department of Land and Natural Resources, (DLNR), approved the Mauna Kea Plan. This would eliminate the sheep from within a fenced area that would incorporate approximately twenty-five percent of the palila habitat while allowing for the rest of sheep to stay on Mauna Kea. However, being dissatisfied with the DLNR's approach, the Sierra Club, the Audubon Society, and Dr. Alan Ziegler brought an action on behalf of the palila against the DLNR. A declaratory judgment was sought that would declare the state's maintenance of sheep in the palila habitat as a "taking" that was prohibited by section 9 of the Endangered Species Act of 1973. They, therefore, asked the court to order the State of Hawaii to take the necessary steps that would remove the sheep and goats. The district court found for plaintiffs and held that the acts and omissions of the DLNR constituted a "taking" and was in violation of section 9 of the Act. This ruling was issued because Section 9 of the Act, that stated that a major environmental modification that would adversely affect an endangered species, could be considered as "takings" and this was prohibited.

Label:

Birds - Palila

Date:

1982

Collection:

Periodicals