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Back to Session 8: Protecting Natural Resources:

Endangered Species Act Part III

Private Violations

Prohibition on "Takings"

 

Glossary Definition

Fifth Amendment

Habitat Modification

 

Glossary Definition of Takings:

 

First, lets come to a shared understanding of what the legal term "takings" implies by referring to a legal glossary:

"A violation of the U.S. Constitutional provision " . . . nor shall private property be taken for public use without just compensation ... ." by a system of land use regulation. Although the Fifth Amendment's prohibition of "takings" of property without "just compensation" applied to the states by virtue of the Fourteenth Amendment (Chicago, Burlington & Quincy Railroad. vs. Iowa, (1876)), it has long been established that state regulation based on the police power may substantially diminish the economic value of private property without giving rise to an obligation to compensate the owner. See e.g., Mugler vs. Kansas, 123 U.S. 623 (1887); Euclid vs. Ambler Realty Co., 272 U.S. 365 (1926). There is a very hazy boundary between "taking" (compensation required) and "police power" regulation (compensation not required). The Supreme Court itself has acknowledged that "there is no set formula to determine where regulation ends and taking begins" (Goldblatt vs. Hempstead, 369 U.S. 590, 594 (1962)). In the language of the decided cases, the phrase "police power" normally connotes that the action in question is being taken without compensation to the property owner. By contrast, where compensation for a "taking" is contemplated, the cases speak of "eminent domain" or "expropriation" powers. Most of the Supreme Court cases in this area have involved zoning laws or other governmental action largely unrelated to environmental concerns. Taking (continued) - See, e.g., United States vs. Causby, 328 U.S. 256 (1946). However, in recent years, several state court decisions have invalidated, under the Federal or state constitutions, state or local police power (no compensation) initiatives designed primarily to preserve the natural environment. See, e.g., Bartlett vs. Zoning Commission, 282 A. 2D 907 (Conn. 1971); Maine vs. Johnson, 265 A. 2D 711 (ME 1970); Dooley vs. Town Plan and Zoning Commission, 197 A. 2D 770 (Conn. 1964). From U.S. Dep. Justice comments in U.S. Congr., Senate Com. Inter. Insular Aff. 1973) Taking is an issue in planning centering around the right of the government to control private use of private land, in effect taking away property rights for the common good. It involves purchasing lands through eminent domain for special purposes, compensation for decreased property values due to regulation, and the rights of private owner ship versus public needs."

The Fifth Amendment & Takings

 

Again, to understand this concept from an environmental perspective, it is useful to review the position on regulatory takings provided by Dr. Henry Butler of the University of Kansas as published by the Cato Institute.

"The Fifth Amendment to the United States Constitution concludes with the Takings Clause—"nor shall private property be taken for public use without just compensation." There are several common-sense reasons why this clause was included in the Bill of Rights. First, protection of property rights (through the public use and compensation requirements) encourages private investment and promotes economic prosperity. Second, compensation is equitable in the sense that no one individual or group is forced to bear a disproportionately large share of the costs of a government program. Third, the public use requirement could limit the scope of government activities to those that involve primarily public, rather than private (special interest), benefits. Fourth, the compensation requirement serves as an important restraint by requiring the government to pay for all the resources that it commands. Although this list of rationales is not necessarily exhaustive, it does suggest that a consideration of these rationales could provide some guidance to the application and interpretation of the Takings Clause. Unfortunately, judicial interpretation of constitutional provisions is never so straightforward.

 

Like many areas of constitutional jurisprudence, judicial interpretation of the Takings Clause has created a confused and baffling body of law. For example, the Supreme Court has emasculated the "public use" requirement to the point that "public use" means whatever the taking government says is a public use. Nevertheless, when government physically invades private property, it is clear that a taking has occurred and that compensation is owed to the property holder.

 

What is not clear is the extent to which the Takings Clause offers property owners protection against reductions in property value caused by government regulations—so-called regulatory takings. In many instances, especially land-use regulations, the effect of regulations is to impose substantial costs on some property owners in the name of achieving what the government has determined to be a public benefit. Thus, many regulatory-induced reductions in property value are potentially characterized as takings subject to the just compensation provisions of the Takings Clause. Indeed, compensation for a typical regulatory taking would seem to fit within the primary justifications for the Takings Clause—encouraging investment, preventing inequitable treatment, and restraining government.

 

Nevertheless, this approach to property rights and regulatory takings offers too much—almost every government action impacts property values, and it would be totally unworkable to require compensation every time a government action causes a diminution in value. But that does not mean that there should be no protection against regulatory takings. Proponents of greater property rights protection have long recognized the need for a principled approach to regulatory takings that is consistent with the overall purposes of the Takings Clause."

Private Property & Habitat Modification

 

Sweet Home	No Harm, No Fowl	Killing Me Softly?
Buy It, Before I Kill Again	Cheap Trick?	Legislative Road Kill

 

Unavoidably, the issue regarding of prohibitions on "takings" of property become complex and critical in regard to the ESA - particularly because the major threat to species involves changes in habitat perpetrated by humans. Whether these changes are intentionally or unintentionally harmful to species is largely irrelevant to the final impact upon species and habitat. The issues, in this regard, are well developed in this short essay by James C. Kozlowski, Professor of Law at George Mason University in his essay "Endangered Species Act Regulates Critical Habitat Modification on Private Land."

 

Babbit vs. Sweet Home:

"Private property rights are not absolute. Most notably, local zoning ordinances may require a building permit before constructing certain home improvements, such as a deck or swimming pool.  Similarly, federal environmental law, specifically the Endangered Species Act (ESA), may require a permit before a private landowner utilizes or develops his property in a manner which may harm the critical habitat of an ESA threatened or endangered species.  On June 29, 1995, the Supreme Court of the United States issued the Sweet Home decision described below.  By a 6-3 vote, the Court upheld the statutory authority of the Secretary of the Interior to include "habitat modification and degradation" as conduct which constitutes "harm" under the ESA.  Accordingly, under the existing interpretation of the ESA, private land use which results in such "harm" is illegal in the absence of a permit from the U.S. Fish and Wildlife Service.  

As the 104th Congress considers reauthorization of the ESA, there are provisions in several bills which would effectively reverse Sweet Home and limit ESA violations to the intentional harm or taking of a threatened or endangered species.  In most instances, such intent would be hard to prove.  Moreover, the ESA specifically recognized that most "harm" to a threatened or endangered species is the product of critical habitat destruction, rather than hunting or trapping.  More often than not, the loss of critical habitat is the result of landowner ignorance or indifference, rather than a specific intent to destroy a particular species listed as threatened or endangered under the ESA.  Consequently, a reauthorized ESA which expressly precludes "habitat modification and degradation" from the statutory definition of "harm," would no longer be able to address the major cause of species extinction, i.e. loss of critical habitat through private or public land use. 

 

No Harm, No Fowl

 

In the case of Babbitt v Sweet Home Chapter of Communities for a Great Oregon, 115 S.Ct. 2407 (U.S. 1995), the plaintiffs, Sweet Home Chapter of Communities for a Great Oregon (Sweet Home), were described as "a group of small landowners, logging companies, and families dependent on the forest products industries in the Pacific Northwest and in the Southeast, and organizations that represent their interests."  In their complaint, Sweet Home alleged that the Secretary of the Interior had exceeded his regulatory authority under the ESA.  Section 9 of the ESA makes it unlawful for any person to "take" any endangered or threatened species and provides the following protection for endangered species:  

 

The Act defines the term "endangered species" to mean "any species which is in danger of extinction throughout all or a significant portion of its range... With respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this [ESA] title it is unlawful for any person subject to the jurisdiction of the United States to take any such species within the United States or the territorial sea of the United States. 16 U.S.C. § 1538(a)(1).

The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. § 1532(19).

 

In 1982, Congress amended the ESA and limited the Section 9 "take" prohibition.  Specifically, Congress authorized "the Secretary to grant a permit for any taking otherwise prohibited by Section 9(a)(1)(B) 'if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity'." 16 U.S.C. § 1539(a)(1)(B).  The ESA, therefore, does not impose an absolute ban on the utilization or development of private property containing the critical habitat of a species listed as threatened or endangered. Instead, it requires the landowner to secure a federal permit before conducting land uses which may result in a "taking" under the ESA.  Like a local building permit, such ESA permits usually allow for development activities subject to conditions designed to eliminate or mitigate an ESA "taking" of a listed species.  

 

Killing Me Softly?

 

The ESA provides no further statutory definition of the term "take" beyond those cited above: "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."  As a result, pursuant to its statutory authority to implement the ESA, the Interior Department, through the Fish and Wildlife Service, promulgated the following regulation that defined the statute's prohibition on takings to include "significant habitat modification or degradation where it actually kills or injures wildlife."

 

Harm in the definition of 'take' in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 CFR § 17.3 (1994).

 

In their lawsuit, Sweet Home contended that the Secretary's "application of the 'harm' regulation to the red‑cockaded woodpecker, an endangered species, and the northern spotted owl, a threatened species, had injured them economically."  The federal district (i.e., trial) court dismissed Sweet Home's complaint. In the opinion of the district court, "Congress intended an expansive interpretation of the word 'take,' an interpretation that encompasses habitat modification."  The federal appeals court, however, reversed.

 

In so doing, the appeals court applied a rule of statutory construction (noscitur a sociis) which holds that "a word is known by the company it keeps."  While acknowledging "the potential breadth" of the word "harm," the appeals court concluded that "the immediate statutory context in which 'harm' appeared counseled against a broad reading."  Rather, like the other words in the definition of "take," the appeals court concluded that "the word 'harm' should be read as applying only to the perpetrator's direct application of force against the animal taken."  Specifically, the appeals court found that "forbidden acts" under the ESA must "fit, in ordinary language, the basic model 'A hit B'. "

 

Based upon the legislative history of the ESA, the appeals court found "Congress must not have intended the purportedly broad curtailment of private property rights that the Secretary's interpretation permitted."  Accordingly, the appeals court held that "Congress had not intended the s 9 "take" prohibition to reach habitat modification."  The United States Supreme Court granted the Secretary of the Interior's petition to review this determination.

 

In this particular instance, the Supreme Court found no allegation that Sweet Home had a "desire to harm either the red‑cockaded woodpecker or the spotted owl.  On the contrary, the Court noted that the Sweet Home groups "merely wish to continue logging activities that would be entirely proper if not prohibited by the ESA."  However, within the context of Sweet Home's specific challenge to ESA regulatory authority, the Court assumed that "those activities will have the effect, even though unintended, of detrimentally changing the natural habitat of both listed species and that, as a consequence, members of those species will be killed or injured."  

 

 Buy It, Before I Kill Again

 

In addition to the statutory provisions described above, Section 5 of the ESA authorizes the Secretary to purchase the lands on which the survival of the species depends.  Accordingly, Sweet Home maintained that this Section 5 authority was "the Secretary's only means of forestalling that grave result [i.e. possible extinction of a listed species]‑‑even when the actor [here the private logging operation] knows it is certain to occur." 

 

In response, the Secretary argued that "the Section 9 prohibition on takings, which Congress defined to include "harm," places on Sweet Home a duty to avoid harm that habitat alteration will cause the birds unless Sweet Home groups first obtain a permit pursuant to Section 10."  The Supreme Court agreed, finding "the Secretary's interpretation is reasonable."  In particular, the Court noted that "an ordinary understanding of the word 'harm' supports it.

 

The dictionary definition of the verb form of "harm" is "to cause hurt or damage to: injure." Webster's Third New International Dictionary 1034 (1966). In the context of the ESA, that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species.

 

Sweet Home argues that the Secretary should have limited the purview of "harm" to direct applications of force against protected species, but the dictionary definition does not include the word "directly" or suggest in any way that only direct or willful action that leads to injury constitutes "harm."

 

The Supreme Court also found as follows that "the broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid."

 

In TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), we described the Act as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." As stated in Section 2 of the Act, among its central purposes is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved...."   16 U.S.C. § 1531(b).

 

In Hill, we construed [the ESA]... as precluding the completion of the Tellico Dam because of its predicted impact on the survival of the snail darter. Both our holding and the language in our opinion stressed the importance of the statutory policy. "The plain intent of Congress in enacting this statute," we recognized, "was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute."

 

Accordingly, the Supreme Court held that "Congress' intent to provide comprehensive protection for endangered and threatened species supports the permissibility of the Secretary's 'harm' regulation."

 

Given Congress' clear expression of the ESA's broad purpose to protect endangered and threatened wildlife, the Secretary's definition of "harm" is reasonable... [T]he fact that Congress in 1982 authorized the Secretary to issue permits for takings... "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity," strongly suggests that Congress understood Section 9 to prohibit indirect as well as deliberate takings.

 

The permit process requires the applicant to prepare a "conservation plan" that specifies how he intends to "minimize and mitigate" the "impact" of his activity on endangered and threatened species, 16 U.S.C. § 1539(a)(2)(A), making clear that Congress had in mind foreseeable rather than merely accidental effects on listed species... Congress' addition of the Section 10 permit provision supports the Secretary's conclusion that activities not intended to harm an endangered species, such as habitat modification, may constitute unlawful takings under the ESA unless the Secretary permits them.   

 

Cheap Trick?

 

On appeal, Babbit v. Sweet Home had contended that "the Government lacks any incentive to purchase land under Section 5 when it can simply prohibit takings under Section 9.  The Supreme Court rejected this argument. In the opinion of the Court, characterizing the Secretary's Section 9 authority to regulate critical habitat as a cheap alternative to Section 5 land acquisition authority "ignores the practical considerations that attend enforcement of the ESA"

 

Purchasing habitat lands may well cost the Government less in many circumstances than pursuing civil or criminal penalties... In addition, the Section 5 procedure allows for protection of habitat before the seller's activity has harmed any endangered animal, whereas the Government cannot enforce the Section 9 prohibition until an animal has actually been killed or injured. The Secretary may also find the Section 5 authority useful for preventing modification of land that is not yet but may in the future become habitat for an endangered or threatened species.  

 

Legislative Road Kill  

 

Based upon the following legislative history of the statute, the Supreme Court concluded that "the Secretary's definition of 'harm' rests on a permissible construction of the ESA."

 

The Committee Reports accompanying the bills that became the ESA do not specifically discuss the meaning of "harm," but they make clear that Congress intended "take" to apply broadly to cover indirect as well as purposeful actions. The Senate Report stressed that " '[t]ake' is defined ... in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." S.Rep. No. 93‑307, p. 7 (1973).

 

The House Report stated that "the broadest possible terms" were used to define restrictions on takings. H.R.Rep. No. 93‑412, p. 15 (1973). The House Report underscored the breadth of the "take" definition by noting that it included "harassment, whether intentional or not." The Report explained that the definition "would allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young."

 

Accordingly, the Supreme Court found that the legislative history of the ESA "supported the Secretary's interpretation that the term 'take' in Section 9 reached far more than the deliberate actions of hunters and trappers."  In addition, the Court noted that the legislative history of the 1982 amendment, which" gave the Secretary authority to grant permits for 'incidental' takings provides further support for his reading of the Act."

 

The House Report expressly states that "[b]y use of the word 'incidental' the Committee intends to cover situations in which it is known that a taking will occur if the other activity is engaged in but such taking is incidental to, and not the purpose of, the activity." H.R.Rep. No. 97‑567, p. 31 (1982).

 

This reference to the foreseeability of incidental takings undermines Sweet Home's argument that the 1982 amendment covered only accidental killings of endangered and threatened animals that might occur in the course of hunting or trapping other animals. Indeed, Congress had habitat modification directly in mind: both the Senate Report and the House Conference Report identified as the model for the permit process a cooperative state‑federal response to a case in California where a development project threatened incidental harm to a species of endangered butterfly by modification of its habitat. S.Rep. No. 97‑418, p. 10 (1982); H.R.Conf.Rep. No. 97‑835, pp. 30‑32 (1982).

 

Thus, Congress in 1982 focused squarely on the aspect of the "harm" regulation at issue in this litigation. Congress' implementation of a permit program is consistent with the Secretary's interpretation of the term "harm."

 

Given the "latitude the ESA gives the Secretary in enforcing the statute, together with the degree of regulatory expertise necessary to its enforcement," the Court further acknowledged that "we owe some degree of deference to the Secretary's reasonable interpretation."

 

When it enacted the ESA, Congress delegated broad administrative and interpretive power to the Secretary. See 16 U.S.C. §§ 1533, 1540(f). The task of defining and listing endangered and threatened species requires an expertise and attention to detail that exceeds the normal province of Congress. Fashioning appropriate standards for issuing permits under Section 10 for takings that would otherwise violate Section 9 necessarily requires the exercise of broad discretion. The proper interpretation of a term such as "harm" involves a complex policy choice. When Congress has entrusted the Secretary with broad discretion, we are especially reluctant to substitute our views of wise policy for his.

 

As a result, based upon "the text, structure, and legislative history of the ESA," the Supreme Court concluded that "the Secretary reasonably construed the intent of Congress when he defined 'harm' to include 'significant habitat modification or degradation that actually kills or injures wildlife'."  The Supreme Court, therefore, reversed the judgment of the federal appeals court.  In so doing, the Supreme Court laid to rest, at least for the time being, the notion that the term "harm" in the ESA "should be read as applying only to the perpetrator's direct application of force against the animal taken."

Babbitt v. Sweet Home

 

Babbitt v. Sweet Home, 115 S.Ct. 2407 (1995) (The protection of habitat case)

 

The Facts

The Lawsuit

Fate of the ESA

 

The Facts

 

The federal Endangered Species Act (ESA) specifically states that it is illegal to "take" any listed endangered or threatened species. The word "take" is defined in Section 9 of ESA to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." While "shoot" or "kill", two of the words used to define "take", are words with a specific and commonly understood meaning, the word "harm" is vague and could have a number of different meanings. To avoid confusion, the US Fish and Wildlife Service, the agency within the federal Department of the Interior responsible for protecting endangered and threatened plants and animals, issued a regulation that included a definition of "harm". The regulation states that an endangered or threatened species is "harmed" if there is "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." The direct result of this definition is two-fold:

1. the habitat of an endangered and threatened species can not be modified by human activity if our actions will result in death or injury to the protected plant or animal;

2. housing and commercial development, or other activities such as agriculture or logging, that will significantly modify the habitat of an endangered or threatened species, is restricted even where the activity will not directly kill or injure the plant or animal.

The Lawsuit

 

The District Court: Sweet Home Chapter of Communities for a Great Oregon (Sweet Home), an organization whose membership includes landowners and people dependent on the logging industry, as well as a number of logging companies, sued the Department of the Interior and the US Fish and Wildlife Service. Sweet Home claimed that the Wildlife Service's regulation defining harm to include "habitat modification" expanded the protection given to endangered and threatened species (specifically the Northern Spotted Owl and the Red-Cockaded Woodpecker) to a degree that Congress never intended when it passed ESA. The District Court disagreed with Sweet Home, ruling that "Congress intended an expansive interpretation of the word "take," an interpretation that encompasses habitat modification." In addition, the District Court noted that Congress had amended ESA a number of times after the Wildlife Service adopted the regulations. If Congress felt that the regulations went beyond what it intended in passing the law, it had ample opportunity to revise and clarify the meaning of the word "harm" in the law. By not doing so, the District Court reasoned that Congress implicitly agreed with the Wildlife Service's interpretation.

 

The Court of Appeals: The Court of Appeals for the District of Columbia Circuit disagreed and overruled the District Court's decision. The Court of Appeals reasoned that the word "harm", like the other words in the definition of "take", should only limit activities that actually result in the "direct application of force" against an endangered or threatened species. Habitat modification, unlike "shoot" or "kill", is not a "direct application of force."

 

Supreme Court: The decision of the Court of Appeals for the District of Columbia Circuit contradicted an earlier decision by the Ninth Circuit Court of Appeals (the federal appeals court with jurisdiction over the western states) in a case called Palilia v. Hawaii Department of Land and Natural Resources. When two federal Courts of Appeal disagree on an issue of law, the US Supreme Court is often called upon to issue its opinion on the matter, settling the dispute by providing a single nation-wide interpretation of the law.

 

The Supreme Court agreed with the position of the Ninth Circuit in Palilia, overruling the Court of Appeals for the District of Columbia Circuit, and upholding the regulations issued by the US Fish and Wildlife Service. Justice Stevens, writing for the majority, gave suggested why the Court found that the regulation defining "harm" was appropriate:

1. the dictionary definition of "harm" is "to cause hurt or damage to". The definition in Webster's Dictionary does not say only direct or willful action causing injury is "harm". Unless the word "harm" includes indirect as well as direct injury, "harm" would have no meaning separate from the other words included in the definition of "take" (i.e., kill, shoot, trap).

2. the definition of "harm" is consistent with Congress' clear expression of ESA's broad purpose to protect endangered and threatened wildlife. The law specifically says that it was enacted "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."

The Fate of the Endangered Species Act

 

The Supreme Court's ruling in Sweet Home, issued in late June, 1995, is not the last word on whether habitat modification will be prohibited under the federal Endangered Species Act. The furor of the "property rights" movement, a powerful nation-wide conservative backlash against the perceived injustices of ESA and the federal agencies responsible for enforcing its provisions, is resulting in Congressional review of the statute.

 

Palila v. Hawaii

 

Seven Cases	Palila I & II Overview	Palila I Summary
Palila II Summary	Palila III Summary	Palila IV Summary
Palila V Summary	Palila VI Summary	Palila VII Summary

 

Seven Cases

• Palila v. Hawaii Dept. of Land and Natural Resources, 471 F. Supp. 985 (1979) (Palila I),

• Palila v. Hawaii Dept. of Land and Natural Resources, 639 F.2d 495 (9th Cir 1981) (Palila II),

• Palila v. Hawaii Dept of Land and Natural Resources  512 F. Supp. 1006 (D. Haw. 1981) (Palila III)

• Palila v. Hawaii Dept of Land and Natural Resources , 631 F. Supp. 787 (D. Haw. 1985) (Palila IV)

• Palila v. Hawaii Dept. of Land and Natural Resources, 649 F. Supp. 1070 (D. Haw. 1986) (Palila V),

• Palila v. Hawaii  Dept of Land and Natural Resources , 118 F.R.D. 125 (D. Haw. 1987) (Palila VI)

• Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106 (1988) (Palila VII).

Palila I & II

 

These cases had to do with the interpretation of "harm" and these cases were famous for being the first in which this interpretation was used in a legal challenge. According to Pamela Baldwin of the Congressional Research Service, the term "harm" in the definition of 'take' in the Act referred to "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. 

 

According to Karen Sheldon in "Habitat Conservation Planning: Addressing The Achilles Heel Of The Endangered Species Act" (New York University Environmental Law Journal, 1998)

"The FWS's interpretation of harm was first used as a basis for legal challenge in Palila v. Hawaii Department of Land & Natural Resources (Palila I). Environmental groups demanded that Hawaii remove feral goats from the critical habitat of the Palila, an endangered species of bird. The plaintiffs argued that the State, by allowing the goats to eat trees that are essential to the Palila's survival, had "taken" the birds in violation of the FWS regulation and Section 9 of the ESA. The district court agreed and directed the State to remove the feral goats. It ruled that "Congress has determined that the protection of any endangered species anywhere is of utmost importance to mankind and that the major cause of extinction is destruction of natural habitat."  The Court of Appeals for the Ninth Circuit affirmed the district court's injunction, finding that the regulation was consistent with the purposes and legislative history of the Endangered Species Act.

In 1981, the FWS amended its regulation because of concerns that the interpretation of "harm" given in Palila I was unduly broad.  The agency claimed that the regulation contained a "significant ambiguity" that made it inconsistent with the intent of Congress in enacting the ESA.  The FWS did not intend habitat modification alone, without any demonstrated injury or death to members of an endangered or threatened species, to trigger the penalties of Section 9.  The FWS stated:

 "If the words "such effects" are read to refer to the phrase "significantly disrupt essential behavioral patterns," then any significant environmental modification or degradation that disrupts essential behavioral patterns would fall under the definition of harm, regardless of whether an actual killing or injuring of a listed species of wildlife is demonstrated. Under such an interpretation, a showing of habitat modification alone would be sufficient to invoke the criminal penalties of Section 9. . [S]uch a result is inconsistent with the intent of Congress."

The new definition of harm was "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."  The FWS emphasized that the regulation was not intended to limit the meaning of "harm" to direct physical injury to members of protected species. Rather, the new definition was to preclude a claim of a taking under the ESA from habitat damage alone.

The amended definition of harm did not alter the outcome of Palila v. Hawaii Department of Land & Natural Resources (Palila II), a suit brought by the plaintiffs in Palila I to challenge the damaging impact of mouflon sheep on Palila habitat. The district court ruled that the amended definition did not require the plaintiffs to prove death or injury to individual Palila birds. Although the plaintiffs brought a stuffed Palila to court in *292 a shoe box, the court held that a showing of harm to the species as a whole resulting from evidence of habitat destruction or modification was sufficient to establish a taking. Again, the Ninth Circuit affirmed the district court, ruling that depleting the Palila's source of food and shelter constituted harm under the ESA because it impaired the birds' essential behavioral patterns."

 

Palila I can be summarized as follows:

1. "Plaintiffs sought declaratory and injunctive relief to stop Defendants from maintaining destructive populations of feral sheep and goats in the Palila’s critical habitat on Mauna Kea on the Island of Hawai‘i. The Palila is found only in the mamane-naio forest of Mauna Kea, where Defendants have maintained a State Game Management Area (hunting grounds) since 1950. The game animals feed on the leaves, stems, seedlings, and sprouts of the mamane trees, and the leaves of the naio trees, thus preventing forest regeneration and causing the Palila population to further decline. Plaintiffs characterized Defendants’ actions as a “taking” of the Palila, in violation of Section 9 of the Endangered Species Act (ESA), 16 U.S.C. § 1538 (a)(1)(B).

2. Defendants first argued the Palila population has increased and that the Palila is not at its “minimal population level.” This is the level below which survival is impossible because the species lacks sufficient genetic variability or sufficient numbers of individuals for breeding. The Court recognized that this level for the Palila is unknown, but the U.S. Fish and Wildlife Service estimates that there are only about 1,400 to 1,600 individuals left. Also, there is an apparent overabundance of males, meaning that the genetic pool is actually much smaller than the numbers indicate.

3. Defendants argued that the Palila currently has enough room to expand within its habitat, and therefore its situation is not critical. The designated critical habitat for the Palila encompasses only 10 percent of the bird’s historical range, and 20-30 percent of the critical habitat is presently uninhabited by the Palila. The Court said that Defendants’ argument only serves to strengthen Plaintiffs’ case because one of the main reasons for classifying the Palila as endangered is that it no longer occupies a significant portion of its historical range. Defendants’ argument is essentially that there are so few birds remaining that they don’t need any more forest.

4. Next Defendants argued that no one knows for certain whether the mamane-naio forest is essential for the Palila’s survival because no one ever attempted to raise the birds in captivity in an alternate environment. But expert witnesses testified that the Palila would be unable to adapt to drastic changes in its environment because it is tied to the forest through evolution. Furthermore, it would be a waste of resources to raise Palila in captivity without a natural habitat into which they could be released.

5. Defendants also argued that they should be allowed to leave a small number of animals for hunters because some forest regeneration would occur if the numbers of sheep and goats were reduced. The Court did not accept this argument, stating that as long as any animals remain, there will be hunter pressure to increase flock sizes, and Defendants have already shown susceptibility to this pressure. Even a small number of these animals can have a destructive effect. Furthermore, complete removal of these animals from the Palilas’ critical habitat would be relatively inexpensive and hunting opportunities would remain. Hunters could still hunt sheep and goats outside the habitat, and other types of animals inside the habitat.

6. Defendants’ next contention was that this matter was not ripe for adjudication because the Board of Land and Natural Resources was still studying whether feral sheep and goats needed to be removed from the Palila’s critical habitat, and therefore there was no final agency determination to sue upon. The Court, however, found no final determination was required because Defendants’ actions at the time were causing immediate harm to Plaintiffs.

7. Defendants tried a new line of defense by offering a Tenth Amendment argument. They challenged the power of the United States to enforce the Endangered Species Act against them, since the Palila is only found in Hawai‘i and no federal lands or federal funds were involved in Defendants’ actions. Defendants relied on Baldwin v. Montana Fish and Game Commission, 436 U.S. 371 (1978) to support state sovereignty over the fate of the Palila. The Court pointed out that Baldwin did not involve a conflict between state action and federal regulations. Furthermore, Baldwin contained dictum that could support both sides of the Palila issue.

8. To counter Defendants’ argument, the Court explained that the ESA was enacted by Congress pursuant to several international treaties, including the Convention for the Protection of Migratory and Endangered Birds, March 4, 1972, United States- Japan, 23 U.S.T. 3329, T.I.A.S. No. 7990, and the Convention of Nature Protection and Wildlife Preservation in the Western Hemisphere, October 12, 1940, United States-Other American Republics, 56 Stat. 1354, T.S. No. 981. Both treaties specifically mention the Palila.

9. The Court also relied on Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) for its explanation of the importance of the Act. The Supreme Court in Tennessee Valley Authority stated that Congress has determined, through the Act, that protection of endangered species is of utmost importance to mankind, and that the major cause of extinction is destruction of natural habitat. The Supreme Court also stated that preservation of endangered species’ natural habitat preserves possibilities of interstate commerce and potential resources for humanity. Thus the Court concluded that the Act may be enforced against Defendants because of the national and international interests at stake.

10. Defendants attempted to argue that there was no “taking” of the Palila as defined by the Act, but a “taking” can include “significant environmental modification or degradation.” Defendants argued that there was no significant environmental modification or degradation because the Palila population is increasing and the forest is regenerating despite the presence of the sheep and goats. The Court said the facts were undisputed and supported the conclusion that there had been a taking.

11. Finally, the Court addressed a question that was not raised by the parties: were the Defendants immune from suit under the Eleventh Amendment? Under the Eleventh Amendment, a state may not be sued by its citizens, or citizens of another state, without the state’s consent. However, state officials may be sued to enjoin them from violating the U.S. Constitution or federal laws. The Court points to language of the ESA (Section 11(g)) that could conceivably open up an Eleventh Amendment defense. In the ESA, Congress expressly authorizes private citizens to bring suit against any governmental instrumentality or agency “to the extent permitted by the eleventh amendment to the Constitution,” 16 U.S.C. § 1540(g). The Court interpreted this clause as a limitation on the scope of relief barring monetary damages against the state. To interpret it as creating blanket sovereign immunity to the private enforcement of the Act “would seriously impair the achievement of broad Congressional purposes underlying the Act and would lead to a right without an effective remedy” 471 F. Supp. 985 at 997.

12. The Court concluded that the State of Hawai‘i has impliedly consented to be sued by actively participating in the conservation scheme contemplated under the Act and by enacting its own ESA in order to qualify for certain financial benefits under the federal Act.

13. Plaintiffs motion for summary judgment was GRANTED, and Defendants were ORDERED to initiate steps for complete removal of feral sheep and goats from the Palila’s critical habitat within two years."

Palila II can be summarized as follows:

1. "Defendants appealed the district court’s grant of a summary judgment for Plaintiffs, and the court’s order to remove feral sheep and goats from the critical habitat of the endangered Palila. The Ninth Circuit reviewed the appropriateness of the summary judgment.

2. The court of appeals addressed whether there was a dispute of material fact. It found that the only relevant questions were whether the Palila is an endangered species and, if so, whether Defendants’ actions constituted a “taking” as defined by the Endangered Species Act (ESA). There is no question that the Palila is an endangered species. As for the Defendants’ actions, Plaintiffs showed below that Defendants’ maintenance of the sheep and goats harmed the Palila by destroying its habitat, which, under the ESA, constitutes a taking.

3. Furthermore, the court stated that Defendants did not rebut Plaintiffs’ argument that the complete eradication of the sheep and goats was necessary.

4. The court of appeals concluded there were no genuine issues of material fact that precluded summary judgment. AFFIRMED."

Palila III can be summarizes as follows:

1. "Plaintiffs prevailed  in their attempt to enjoin Defendants from maintaining feral sheep and goats that damaged the Palila’s critical habitat. The Ninth Circuit Court of Appeals affirmed the decision. Plaintiffs submitted two supplemental petitions for reasonable attorneys’ fees, which were granted. "

2. The District Court Proceedings ruled regarding attorney billable hours, and fees.

Palila IV can be summarized as follows:

1. In the court below (Palila v. Hawaii Department of Land and Natural Resources, 512 F. Supp. 1006 (D. Haw. 1981)), Plaintiffs were granted summary judgment requiring the Defendants to begin complete removal of feral sheep and goats from the endangered Palila’s critical habitat on Mauna Kea on the Island of Hawai‘i. Several hunters and hunting associations joined this action, and new evidence was presented. The evidence included 1) Department of Land and Natural Resource’s (DLNR) “Final Report” Ecology of Mouflon Sheep on Mauna Kea; 2) “Annual Variation in the Distribution, Abundance, and Habitat Response of the Palila,” a study published in The Auk, a Quarterly Journal of Ornithology; 3) U.S. Fish and Wildlife Service’s “Draft Revised Palila Recovery Plan”; and 4) deposition testimony from the authors of these studies. This Court determined that genuine issues of material fact existed in light of the new studies and therefore denied Plaintiffs’ motion for summary judgment.

2. Defendants first argued that their actions did not constitute harm because the definition of “harm” under the ESA has narrowed to outlaw an act, which “actually kills or injures wildlife.” The Court, though, concluded that its finding in Palila I that “harm” includes “significant environmental modification or degradation which actually injures or kills wildlife” remained consistent with the current law.

3. Defendant also argued changed conditions as to 1) the Palila population, 2) the mouflon sheep population within the habitat, 3) the extent of destruction of the habitat caused by the sheep, 4) the extent of the regeneration of the mamane-naio forest since the Palila I decision, and 5) whether complete removal of sheep is required or whether there can be some coexistence of sheep and Palila within the habitat.

4. Evidence was presented indicating an increase in the Palila population to 1,876 individuals. Also, deposition testimony indicated that forest degradation depended on the density of sheep in the area, raising a dispute as to whether complete eradication was necessary. Based on this evidence and argument, the Court found that genuine issues of material fact existed as to the present definition of the critical habitat of the Palila and as to whether complete eradication of sheep was necessary.

5. Plaintiffs’ motion for summary judgment was DENIED."

PalilaI V can be summarized as follows:

1. "In 1979, the plaintiffs had sought declaratory and injunctive relief in the name of the Palila (“Palila I”). The plaintiffs claimed that the defendants had violated the “taking” provision, which is section 9 of the ESA, by maintaining feral sheep and goats in the Palila’s critical habitat on the Island of Hawai‘i. The U.S. District Court of Hawai‘i granted the plaintiffs’ motion for summary judgment and ordered that the sheep and goats be permanently removed from the Palila’s critical habitat. On appeal, the U.S. Court of Appeals of the Ninth Circuit considered whether there were disputed material facts that precluded an order for summary judgment, and whether the trial court erred in finding that there was an unlawful taking of the Palila as defined by the ESA. The U.S. Court of Appeals of the Ninth Circuit affirmed the district court’s order granting summary judgment to the plaintiffs and held that the defendants’ actions constituted an unlawful “taking” of the Palila under the ESA.
    

2. The Palila is a finch-billed member of the Hawaiian Honeycreeper family, and is found only in Hawai‘i. In 1967, the Palila was listed as an endangered species. In 1977, the U.S. Fish and Wildlife Service officially designated the Palila’s critical habitat after a unanimous recommendation by the Palila Recovery Team. The designated Palila critical habitat included the existing mamane-naio forest on Mauna Kea on the Island of Hawai‘i. The mamane-naio ecosystem is essential for the Palila’s survival because it depends on these trees for food, shelter, and nest sites. Moreover, the known population of the Palila coincides and is limited to the mamane and naio forests on the Island of Hawai‘i. At the time of this action, the total Palila population was 2,200, however, there was no clear population trend indicating that the Palila population was increasing.
    

3. In the 1950s, the defendants began to maintain the feral sheep and goat populations within a State Game Management Area established on the slopes of Mauna Kea for sport and hunting purposes. The feral sheep and goats use the mamane leaves, stems, seedlings and sprouts, and naio leaves as a food source. As a result, the presence of the feral sheep and goats prevented the regeneration of the mamane-naio forest, thus decreasing the Palila’s habitat. Although the mamane-naio forest had improved over thirty years, the regeneration of the mamane forest had been limited to areas with human activity or beyond the reach of the feral sheep and goats. Additionally, the feral sheep and goats’ activities caused the tree line to recede down the slopes of Mauna Kea.
    

4. The State Division of Fish and Game introduced the mouflon sheep into Mauna Kea in an attempt to modify the feral sheep’s undesirable characteristics. The mouflon sheep are native to Corsica and Sardinia. The hybridization project was never completed due to pressure from hunters. The State of Hawai‘i Department of Land and Natural Resources maintained the mouflon sheep population within the Palila critical habitat for sport-hunting purposes. In Palila I, the plaintiffs had excluded the mouflon sheep in their prayer for relief until more studies were performed to determine whether the presence of the mouflon sheep in the Palila critical habitat had any adverse effects on the Palila population. Since Palila I, several papers had been published about the effect of moulfon sheep on the Palila critical habitat. Based on these papers, the plaintiffs considered the presence of the moulfon sheep in the Palila critical habitat to be a “taking” under the ESA. The plaintiffs sought injunctive relief against the defendants to remove the mouflon sheep from the Palila’s critical habitat.
    

5. The issue the court considered was whether the mouflon sheep were “harming” the Palia in violation of the ESA.

1. The defendants contended that “harm” only includes actual injury to the endangered species from habitat destruction or modification. To find an actual injury, there must have been a decline in the Palila population. Therefore, there was no actual harm to the Palila because their population had remained static. The court disagreed with the defendants’ interpretation of “harm” and interpreted its meaning to include actions that significantly impair essential behaviors that result in an actual negative impact or injury to the endangered species, which threatens its continued existence or recovery. Thus, a showing of “harm” does not require a showing that there was an actual decline in the Palila population. The court also pointed out that the Palila population is close to the critical population mark. Accordingly, the court held that a habitat modification that precludes a population recovery causes an injury to the species in violation of section 9 of the ESA.

2. Studies conducted by Dr. Giffin indicated that the mamane was the most important food source for the mouflon sheep. The mouflon sheep eat the leaves, stems, seedlings, and basal shoots of the mamane tree. The defendants argued that the mouflon sheep, however, did not have the same adverse effects as the feral sheep on the Palila population because the mouflon sheep did not exclusively depend on the mamane tree. Various studies, however, proved that the feeding habits of the mouflon sheep and feral sheep were the same. Hence, the presence of the mouflon sheep in the Palila critical habitat had the same detrimental effects as the feral sheep on the regeneration of the mamane forest.

3. The court found that the adverse habitat effect would either decrease the Palila population, or prevent the recovery of the Palila population. Therefore, the court held that the presence of the mouflon sheep in the Palila critical habitat was harming the Palila as defined in the ESA regulations.

6. The defendants asserted that the forests on Mauna Kea could be used for both endangered species conservation and sport-hunting purposes. The defendants argued that since they have removed the feral sheep, the mamane forest has regenerated. In addition, the defendants contended that they were taking steps to minimize the effect of the mouflon sheep on the mamane forest. Finally, the defendants pointed out that the effect of the mouflon sheep on the mamane forest would be unknown for several years. Until then, the mouflon sheep should be allowed to remain on Mauna Kea under a strict management program. The court disagreed with the defendants’ arguments. Whether the mamane forest would regenerate was unknown, and if it would regenerate, the Palila would not benefit from the mamane re-growth for twenty-five to fifty years. Additionally, the ESA does not allow for a balancing approach in conserving endangered species. Once it had been determined that the mouflon sheep were harming the Palila, the ESA does not allow for alternative management strategies. The experimental approach that the defendants proposed could have resulted in the extinction of the Palila. The court held that it could not take such a risk.
    

7. Accordingly, the court held that the maintained mouflon sheep population for sport-hunting purposes was harming the Palila in violation of the ESA. Until the mamane forest on Mauna Kea regenerated to allow for the coexistence of both the mouflon sheep and the Palila, the court ORDERED for the mouflon sheep and the mouflon/feral sheep to be removed from the slopes on Mauna Kea. "

Palila VI can be summarized as follows:

1. "The court held that the maintained mouflon sheep population for sport-hunting purposes was harming the Palila in violation of the ESA. Until the mamane forest on Mauna Kea regenerated to allow for the coexistence of both the mouflon sheep and the Palila, the court ordered for the mouflon sheep and the mouflon/feral sheep to be removed from the slopes on Mauna Kea.
    

2. On June 13, 1987, the plaintiffs filed a motion to fix the amount of attorney’s fees. Under 16 U.S.C section 1540(g)(4), the court may award litigation costs when appropriate. To determine litigation costs, the court looked at several factors: (1) the time and labor required; (2) the novelty and difficulties of the case’s issues; (3) the required skill needed for the proper legal service; (4) whether the attorney is precluded from other employment as a result of accepting the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the case; (8) the amount involved in the case and the results obtained; (9) the attorneys’ reputation, experience, and ability; (10) the undesirability of the case; (11) the nature and length of the client-attorney relationship, and (12) awards in similar cases.
    

3. The plaintiffs asserted that 809.8 hours were spent on this case. The attorneys’ hours included the amount of time spent on preparation and trial time. The plaintiffs also pointed out that they tried to minimize the amount of travel time and attempted to expedite the case. Finally, the plaintiffs had excluded numerous hours spent on the case that they refrained from billing. Therefore, the court found that 809.8 hours was a reasonable amount of time for the case.
    

4. The court found that the issues involved in the case were novel and complex. The attorneys had to have legal expertise on the ESA, and scientific knowledge on the Palila and its ecosystem. Thus, the court held that the hourly rate proposed for each attorney involved was reasonable:

1. The plaintiffs proposed a $175 hourly rate for Mr. Sherwood. In 1967, Mr. Sherwood had graduated from Stanford Law School. Subsequently, he was admitted to both the Hawaii State Bar and the California State Bar. Additionally, Mr. Sherwood had been practicing law for over ten years. Finally, Mr. Sherwood submitted affidavits from reputable attorneys declaring Mr. Sherwood’s expertise in complex federal litigation and environmental law. The attorneys proposed a rate between $150 to $250. The court found that these rates were comparable to court-awarded fees in public interest cases. The court held that a $175 hourly rate for Mr. Sherwood was reasonable.
    

2. The plaintiffs claimed that a $125 hourly rate was reasonable for Mr. Hunt. Mr. Hunt graduated from Columbia University School of Law and had practiced law in Hawaii for over ten years. Mr. Hunt’s standard fee for noncontingency cases was $125 per hour. In addition, the plaintiffs submitted affidavits from attorneys claiming that a $125 hourly rate was reasonable. Therefore, the court held that the $125 hourly rate was a reasonable amount for Mr. Hunt.
    

3. The plaintiffs suggested a $75 hourly rate for Mr. Taniguchi. The plaintiffs had submitted affidavits from attorneys who declared that $75 was a reasonable hourly rate for an associate attorney two years out of law school. The court found that this was a reasonable hourly rate for Mr. Taniguchi.

5. The plaintiffs had filed with the Clerk of Court a Bill of Costs in the amount of $5,647.82. The plaintiffs sought an additional $11,169.36 for depositions taken in the case, but not used in the trial, and travel expenses of Mr. Sherwood and expert witnesses. The court found that the additional money requested by the plaintiffs was reasonable.
    

6. Accordingly, the court awarded to Mr. Sherwood a fee in the amount of $135,362.50, Mr. Hunt a fee in the amount of $1,255.00, and Mr. Taniguchi a fee in the amount of $1,987.50. The total reasonable attorneys’ fees was $138,575.00. In addition, the court granted the plaintiffs’ request for $11,169.36."

Palila VII can be summarized as follows:

1. "In this action, the appellants asserted that the U.S. District Court of Hawai‘i interpreted the meaning of “harm” too broadly. The appellants argued that actual harm only included actions that cause immediate destruction of the Palila’s food sources. All other actions are potential harms even though there was a clear and casual link between the action and the destruction of the Palila’s food source. The court disagreed with the appellants’ interpretation of “harm” as defined in the ESA regulations. Instead, the court affirmed the U.S. District Court of Hawai‘i Judge King’s interpretation of “harm” that included activities resulting in habitat destruction that could result in the Palila’s extinction.
    

2. The appellants contended that the mouflon sheep could coexist with the Palila, and the reason for the decline of the Palila’s critical habitat was due to the feral sheep. The appellants pointed out that since the removal of the feral sheep and goats, the mamane-naio forests have regenerated. Additionally, the appellants have begun several regeneration projects. Finally, the State of Hawai‘i Department of Land and Natural Resources (“Department”) planned to control the mouflon sheep population. The appellees argued that the maturation of the mamane trees takes twenty-five years. Meanwhile, the mouflon sheep would continue to kill the mamane trees. Additionally, the appellees’ experts concluded that the Department’s plans were not going to be successful, and the moulfon sheep and Palila could not co-exist. Finally the appellees argued that the Palila population has remained static despite the removal of the feral sheep and goats. The court found that the appellees’ assertions corroborated with documentary evidence. Therefore, the court held that the Palila could not coexist with the mouflon sheep.
    

3. The court did not reach the issue of whether the interpretation of harm included habitat destruction that impeded the recovery of the endangered species. The court held that the district court’s interpretation of harm and findings that the mouflon sheep were causing harm to the Palila was sufficient to sustain an order for the removal of the mouflon sheep.
    

4. Accordingly, the court AFFIRMED the district court’s findings that habitat degradation that could result in an endangered species extinction constituted a “harm” as contemplated in the ESA."