Citizen Suit Secures Protection For Imperiled O`ahu Forest Bird

Native forest bird to be added to the Endangered Species List and get legal protection


David Henkin, (808) 599-2436

As a result of a lawsuit brought by Earthjustice Legal Defense Fund on behalf of the Conservation Council for Hawai’i (CCH), the critically imperiled O`ahu `elepaio (a native forest bird) is finally benefiting from protection under the federal Endangered Species Act (“ESA”). On January 3, 2000, CCH filed suit against the Secretary of the Interior and the Director of the United States Fish and Wildlife Service (“Service”) to compel the Service to take final action on a proposed rule to add the O`ahu `elepaio to the endangered species list. Sightings of the O`ahu `elepaio — once abundant in forested areas throughout O`ahu — have plummeted in recent years, with only an estimated 1,500 birds remaining, and the bird now occupies only about 4 percent of its original, historic range. The bird’s dramatic decline prompted the Service to propose the O`ahu `elepaio for listing as endangered on October 6, 1998, but the Service then failed to comply with the ESA’s strict mandate to finalize this proposal within one year. As a result of a settlement reached in February 2000, the Service published a final rule today listing the O`ahu `elepaio as an endangered species.

Finalizing the proposed rule was necessary to extend to the O`ahu `elepaio the full range of legal protection that listing under the ESA confers. Now that it is listed, both federal and state law prohibit harassing, harming or killing the O`ahu `elepaio, including habitat modification that significantly impairs the bird’s normal behavioral patterns such as breeding, feeding or sheltering. Listing will also require all federal agencies — including the Department of Transportation and the military — to ensure that their actions will not push the O`ahu `elepaio towards extinction in the wild.

“While we’re pleased that the O`ahu `elepaio is finally protected as an endangered species, we’re frustrated that, once again, the Service has flouted its duty also to designate the species’ critical habitat,” said Earthjustice Legal Defense Fund attorney David Henkin. “It’s unfortunate that concerned citizens have to take the Service to court to force it to comply with the law. But critical habitat protection is vital to the O`ahu `elepaio’s recovery, so that’s what we’ll do.”

“Critical habitat” consists of those areas that must be managed to permit an imperiled species to recover to a level where it is safe, for the foreseeable future, from the danger of extinction. Critical habitat designation generally has little impact on private land owners since it is directed solely at actions carried out, funded or approved by federal agencies. Nonetheless, designating critical habitat confers significant benefits on Hawai’i’s listed species by protecting them from federal agency actions — such as federal funding of road improvements, federal infrastructure projects, and military training — that can adversely modify or destroy the habitat on which these species depend for their survival and recovery. Also, designating critical habitat performs an important educational role, informing the public as well as state and local governments about areas essential to the conservation of Hawai’i’s native species.

Habitat loss and degradation currently pose one of the primary threats to the O`ahu `elepaio. For example, the H-3 freeway — completed in 1997 — cut through Hälawa Valley, home to one of only seven remaining populations of the bird. Suburban and golf course development also displaces habitat the O`ahu `elepaio needs. Ordnance-induced fires and related military activities at Mäkua Military Reservation and Schofield Barracks pose significant threats to a large part of the bird’s remaining habitat in the eastern Wai`anae Mountains.

Conservation Council for Hawai’i is a non-profit citizens’ organization with over 300 members on O`ahu, approximately 550 members elsewhere in Hawai’i, and several hundred members in other parts of the United States. CCH seeks to promote environmental health and education in general, and the conservation and management of Hawai’i’s natural resources in particular, including imperiled Hawaiian forest birds like the O`ahu `elepaio.

Additional Resources

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people's health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.