7626

• UCREFRP Catalog Number: 7626
• Author: Sidle, J. G. and D. B. Bowman
• Title: Habitat Protection under the Endangered Species Act
• USFW Year: 1988
• USFW - Doc Type: Conservation Biology
• Copyright Material: YES

Sidle & Bowman

/

managed by the state of Hawaii for sport hunting pur-
poses.
Although critical habitat has been designated for the
palila (50 Code of Federal Regulations ~ 17.95), most of
it lies within the state of Hawaii's Mauna Kea Game
Management Area. Because there is no federal activity
involved, Section 7 cannot be invoked to address the
destructive and adverse browsing in the palila's habitat.
However, in 1979, US. District Court for Hawaii ruled
that the Hawaii Department of Land and Natural Re-
sources was violating the Act because its management of
feral sheep and goats on Mauna Kea constituted an un-
lawful taking of palila (Palila v. Hawaii Department of
Land and Natural Resources, 471 F. Supp. 985 [1979])
(Palila I). Feral sheep and goats were modifying habitat
and disrupting the palila's feeding behavior. Palila I was
atIlfmed by the Ninth Circuit Court of Appeals (Palila v.
Hawaii Department of Land and Natural Resources,
639 F.2d 495 [1981]).
The ecological effect of palila habitat destruction is
unequivocal. Even small numbers of feral sheep and
goats can denude a large area and eliminate forest re-
generation. Unless stopped, feral goats and sheep would
eventually eliminate palila habitat and palila numbers
would decline accordingly. By allowing goats and sheep
to browse, the state of Hawaii was effectively taking
(harming) palila.
In 1981, in response to Palila I, the Department of the
Interior proposed to remove any mention of environ-
mental modification or disruption from the definition of
harm ( 46 Federal Register 29490) but was persuaded to
promulgate the following redefinition of harm ( 46 Fed-
eral Register 54748):

"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 breed-
ing, feeding, or sheltering.

This redefinition of harm was similar to the previous
definition, and the Department of the Interior explained
that harm was not limited to:

r

direct physical injury to an individual member of the
wildlife species. . . . The purpose of the redefinition was
to preclude claims of a Section 9 taking for habitat mod-
ification alone without any attendant death or injury of
the protected wildlife. Death or injury, however, may be
caused by impairment of essential behavioral patterns
which can have significant and permanent effects on a
listed species.

Harm clearly means detrimental actions to species' hab-
itat as well as the standard meaning of directly killing
individuals. Bean ( 1983) states that Palila I clarified the
dilemma of habitat destruction when a species is not
currently present. Vital nesting habitat of a migratory

Habitat Protection

117

bird, for example, cannot be harmed regardless of
whether the birds are present or wintering elsewhere.
In November 1986 the US. District Court for Hawaii
issued another ruling in the same case-this time involv-
ing another introduced ungulate browser, the European
mouflon (Ovis musimon) (Palila v. Hawaii Depart-
ment of Land and Natural Resources and Sportsmen of
Hawaii, 649 F. Supp. 1070 [1986]) (Palila II). Expert
witnesses at trial, including those of the defendants,
agreed that the mouflon sheep are currently degrading
the mamane forest, that this degradation is irrev~rsible
because it is suppressing the forest's regeneration, that
palila depend on mamane for their existence, and that
continued degradation could drive the palila into ex-
tinction. Palila II refused to accept the defendants' claim
that any effect the mouflon has on mamane and indi-
rectly on palila is only a potential injury and does not fall
within the Department of the Interior's revised defini-
tion of harm. The defendants also maintained that an
actual decrease ofpalila numbers must be shown.'.How-
ever, Palila II concluded that the Department of the
Interior's redefinition of harm was not substantiaLly dif-
ferent from its previous definition (Bean 1987) and
stated:

A finding of "harm" does not require death to individual
members of the species; nor does it require a finding
that habitat degradation is presently driving the species
further toward extinction. Habitat destruction that pre,
vents the recovery of the species by affecting essential
behavioral patterns causes actual injury to the species
and effects a taking under Section 9 of the Act.

Palila II also stated that a "showing of harm do~s not
require a decline in population numbers." The palila is
already endangered, exists at a critical population level,
and needs to recover. The US. Fish and Wildlife S~rvice
( 1986) has determined that the palila will be reco:vered
and removed from the endangered species list when the
population has achieved a density of 25 birds per square
kilometer (5000 birds) throughout the 200 sq kIn of
critical habitat continuously for five years. Rega,rding
harm and recovery, Palila II stated:

The key to the Secretary's [of the Interior] definition is
harm to the species as a whole through habitat destruc-
tion or modification. If the habitat modification prevents
the population from recovering, then this causes injury,
to the species and should be actionable under Section 9.

like the browsing feral goats and sheep in Palila I, the
grazing mouflon sheep in Palila II were decreasing food
and nesting sites and thus suppressing the palila popu-
lation and preventing it from expanding to recovery.
Palila II also had something to say about the enforce-
ment of Section 9. Oftentimes compromise or accom-
modation is sought in endangered species conftionta-
tions. Defendants in Palila II sought a multiple-use
approach to accommodate their sport hunting and en-
dangered species protection responsibilities. However,

Conservation Biology
Volume 2, No.1, Marc\1 1988