Case Number # 1784
The palila -- a bird endemic to Hawai'i -- depends on the native Hawaiian dry land forest, particularly mamane trees, for food, shelter, and breeding, and the destruction of mamane forests by sheep and goats and other browsing animals in the early twentieth century prompted a sharp decline in palila numbers and habitat. The U.S. Fish and Wildlife Service reacted by recognizing palila as endangered in 1967 and designating Palila critical habitat on the upper slopes of Mauna Kea.
Despite the known harm to native forests from browsing by sheep and goats, the State of Hawai`i continued to maintain feral goats and sheep for sport hunting within palila's critical habitat and even stocked the forests with mouflon sheep, another destructive browser. In an historic opinion issued in 1979 and a second in 1987, the District Court for the District of Hawai`i held, in decisions upheld by the Ninth Circuit, that degradation of palila habitat constitutes unlawful harm to palila in violation of the Endangered Species Act. The court found the state was in violation of the ESA because the state maintained the destructive animals in the federally listed bird's last-remaining habitat, on which the palila depends for breeding, feeding, and sheltering, and ordered it to remove all sheep and goats completely and permanently. A third court order in 1998 affirmed the 1979 and 1987 orders and required the state to continue removing goats and sheep and to minimize the animalsâ€™ migration into the critical habitat, such as by constructing and maintaining a perimeter fence.
Despite the three court orders, the state has failed to remove sheep and goats completely and permanently from the critical habitat and has yet to start construction on an adequate perimeter fence. Earthjustice returned to court in 2009 seeking the state's compliance with the court's prior orders in order to protect this bird before it slides into extinction. The court emphasized that the state's obligations to remove ungulates and prevent them from returning to the critical habitat area are continuing, and the court exercised additional oversight over the state's efforts, including requiring biannual reports of its fence construction efforts. Earthjustice continues to monitor the situation.