## Facts

- The palila is an endangered Hawaiian bird found only on the slopes of Mauna Kea and is dependent on mamane-naio woodlands for food, nesting, and shelter.
- The State of Hawaii owned the relevant lands, including the palila’s designated critical habitat, which comprised a limited portion of the species’ historical range.
- Hawaii’s Department of Land and Natural Resources maintained introduced ungulates for sport hunting in and around the palila’s habitat.
- Earlier litigation resulted in findings that maintaining feral goats and feral sheep in the palila’s habitat unlawfully “took” the palila by destroying mamane-naio woodland.
- Mouflon sheep were introduced on Mauna Kea between 1962 and 1966 for hunting; later scientific research tied mouflon browsing and vegetation damage to continued habitat degradation.
- Plaintiffs reopened the prior action and sought to add mouflon sheep as destructive animals to be removed based on evidence of their effect on the palila’s habitat.
- The district court found mouflon sheep significantly contributed to habitat degradation impairing palila feeding, sheltering, and breeding, and ordered their removal from the critical habitat.
- The Department and hunter-intervenors appealed the removal order.

## Issues

1. Whether the State’s maintenance of mouflon sheep in the palila’s designated critical habitat constituted a prohibited “take” under ESA § 9 through “harm” caused by significant habitat modification.
2. Whether the district court properly ordered injunctive relief requiring removal of mouflon sheep from the palila’s critical habitat.

## Decision

- The Ninth Circuit affirmed the district court’s judgment.
- The court held that maintaining mouflon sheep in the palila’s critical habitat constituted “harm,” and thus a prohibited “take,” because their browsing and habitat degradation actually injured the palila by impairing essential behavioral patterns.
- The court upheld the injunction requiring removal of mouflon sheep from the palila’s critical habitat.

## Legal Principles

- ESA § 9’s prohibition on “take” reaches habitat modification when it constitutes “harm” by actually killing or injuring listed wildlife through significant impairment of essential behaviors, including breeding, feeding, or sheltering.
- A state agency’s affirmative maintenance of nonnative animals that materially degrade critical habitat can constitute a prohibited “take,” even without direct killing of the listed species.
- Appellate review of a district court’s ecological and causation findings is deferential; factual findings supported by expert testimony and studies will be upheld absent clear error.
- Courts may issue broad equitable relief under the ESA to prevent ongoing or future takes, including orders requiring removal of animals shown to be causing unlawful harm.
- Recreational hunting interests do not override the ESA’s mandate to prevent prohibited takes of endangered species.

## Conclusion

The Ninth Circuit sustained an injunction requiring Hawaii to remove mouflon sheep from the palila’s critical habitat because the State’s continued maintenance of the sheep caused significant habitat degradation that actually injured the endangered palila and therefore constituted a prohibited “take” under ESA § 9.


Palila v. Haw. Dep’t of Land & Nat. Res., 852 F.2d 1106 (9th Cir. 1988)