Mike Sherwood: Breaking Legal Ground with a Tiny Bird and King Salmon

One day in 1988, a phone rang in Mike Sherwood’s office. It was Cindy Williams, with the American Fisheries Society. She had alarming news.

The latest count of the winter-run subspecies of Chinook salmon in the Sacramento River was just in: Only 2,000 fish returned to spawn—well below the 200,000 that ran before Shasta Dam was built in the 1940s. Something was disastrously wrong.

Sherwood thought for a minute and suggested a lawsuit demanding protection of the winter-run under the Endangered Species Act, a stratagem never tried before. Williams agreed and Sherwood filed the case.

He lost, guessing afterwards that “it was a little too radical and a little too innovative for the judge. He dismissed the suit.”

Sherwood appealed, but as the appeal was being considered in 1989 a population estimate for that year came in: Fewer than 200 winter-run Chinook were counted. This was too dire to ignore and the government proposed an emergency listing. Sherwood dismissed the lawsuit, having gotten the government’s attention. The winter-run has since rebounded—but still is nowhere near historic numbers—after the retooling of Shasta Dam and more attention to releases of reservoir water to benefit the fish.

Sherwood followed with a series of lawsuits that brought protection to 27 species of salmon and steelhead on the West Coast, a reprieve that has allowed the species to halt their slide and stand a decent chance of coming back if only government—and loggers, ranchers, mega-farmers and the weather—give them a chance.

Sherwood’s legal career began with a job as an assistant U.S. attorney in Hawaiʻi after law school in the early 1970s. Serendipity led him to what would later be called environmental law.

In Hawaiʻi he learned that the Coast Guard had repeatedly suggested going after shipping companies that routinely discharged waste into Hawaiian waters he was fond of diving in. Sherwood filed a couple of lawsuits against the shipping companies that resulted in a welcome reduction of the pollution.

During a brief stint in private practice, Sherwood met Jim Moorman, head of the brand new Sierra Club Legal Defense Fund, which had been created to provide legal services to the Sierra Club and other conservation organizations that otherwise couldn’t afford them. (The Legal Defense Fund, which had separated from the club, changed its name to Earthjustice in 1997.)

Moorman had taken note of Sherwood’s work in Hawaiʻi and in 1974 asked him to move to San Francisco and become the Legal Defense Fund’s fourth lawyer. But moving to the mainland hardly ended Sherwood’s love affair with the Islands.

Alan Ziegler, a zoologist at the Bishop Museum in Honolulu, related to Sherwood the sad plight of the palila, a small bird in the honeycreeper family, that lives exclusively between the elevations of 7,000 and 10,000 feet on Mauna Kea on the Big Island of Hawaiʻi. It dines only on the seeds of the mamane tree, which is endemic to the same habitat. Meanwhile, feral sheep and goats, brought to Hawaiʻi for sport hunting, were destroying the trees.

Sherwood hit the law books and confirmed that the Endangered Species Act of 1973, which was new and not much explored, prohibited the “taking” of protected animals. This clearly meant hunting or trapping—but Sherwood thought he might be able to argue that destroying habitat vital to the survival of, in this case, the palila, which was on the list of protected species, might also constitute a taking and therefore be illegal.

Sherwood captioned the case, in a serious but somewhat whimsical stroke, Palila (Loxioides bailleui) v. Hawaiʻi Department of Land and Natural Resources.

He named human coplaintiffs as well, and the state didn’t bother to challenge the standing of the bird. The newspapers—and several generations of law professors and students—loved it.

So did the judge, who ruled that the state must remove the animals that were pushing the palila to extinction. This decision set the important legal precedent that damaging the habitat of a listed species is illegal.

In 1988, the Legal Defense Fund decided to open an office in Hawaiʻi and Sherwood returned to spend a year there to get the new office staffed and running.

Sherwood noticed that the list of species in the Islands—mostly plants—awaiting protection under federal law numbered nearly 500. Taking them one at a time would take more than forever, so he rolled them into a single package and filed suit—another first—demanding action. That resulted in the listing of about 300 Hawaiian plant species. Upon his return to the mainland, he did the same in California, and managed to have another 160 California plant species protected. And shortly thereafter, with Eric Glitzenstein of Defenders of Wildlife, he took on the whole country, and sued on behalf of another 500 species of plants and animals that the government was letting slowly slip away.

All told, Sherwood figures that he and his colleagues have had a hand in protecting around 700 species, more than a third of the total number on the endangered species list.

Mike Sherwood retired at the beginning of the summer of 2013, having worked for Earthjustice just shy of 40 years, a good long run.

Was it worth it? Says Sherwood: “We did a case that resulted in stopping clear-cut logging of 2,000-year-old redwood trees adjacent to Redwood National Park, and expanding the size of the park to include those trees. Years later I went back. It was incredibly gratifying to see that there was no logging going on and that what had been clear cuts, bare dirt and stumps, was now green with new redwoods and other undergrowth.”

In other words, Yes.

Written by Tom Turner. First published in the Winter 2013 issue of the Earthjustice Quarterly Magazine.