The Palila (Loxoides bailleui) is an endangered Hawaiian honeycreeper endemic to the upper slopes of Mauna Kea on the Island of Hawai'i. Its survival depends on the mamane–naio dry forest ecosystem, particularly mamane seed pods for food and mature trees for nesting and shelter. For decades, the Hawaii Department of Land and Natural Resources (DLNR) managed Mauna Kea as a game management area, introducing and maintaining herds of feral sheep and goats (and later mouflon) for sport hunting. Scientific evidence showed that browsing by these ungulates prevented mamane regeneration, destroyed seedlings, debarked mature trees, and degraded the forest, leading to food scarcity and nesting habitat loss for the Palila. In 1977, the U.S. Fish & Wildlife Service designated the Palila's critical habitat on Mauna Kea. Despite partial fencing and periodic culling, DLNR maintained populations of ungulates within the Palila's critical habitat to support hunting. Environmental organizations and individuals (with the Palila itself named in the caption) sued under the ESA's citizen-suit provision, seeking declaratory and injunctive relief, arguing that DLNR's management policies constituted a prohibited "take" by causing significant habitat modification that actually injured and killed Palila through starvation, reproductive failure, and loss of shelter. The district court credited expert ecological evidence, found a violation of ESA § 9, and ordered eradication of feral sheep and goats from the Palila's critical habitat. DLNR appealed.
Does a state wildlife agency "take" an endangered species in violation of ESA § 9 by maintaining feral ungulates that significantly modify and degrade the species' critical habitat, thereby actually killing or injuring the species by impairing essential behaviors?
Under the Endangered Species Act, it is unlawful for any "person" to "take" any endangered species. 16 U.S.C. § 1538(a)(1)(B). "Person" includes state agencies. 16 U.S.C. § 1532(13). "Take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." 16 U.S.C. § 1532(19). By regulation, "harm" reasonably includes significant habitat modification or degradation that actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. See 50 C.F.R. § 17.3. Courts may enjoin ongoing or threatened violations under the ESA's citizen-suit provision, 16 U.S.C. § 1540(g).
Yes. The Ninth Circuit affirmed the district court's judgment that DLNR's maintenance of feral sheep and goats within the Palila's designated critical habitat constituted a prohibited "take" under ESA § 9 because the resulting habitat destruction actually killed or injured Palila by impairing essential feeding and breeding behaviors. The court upheld injunctive relief requiring eradication of the ungulates from the Palila's habitat.
The court accepted the Fish & Wildlife Service's regulatory interpretation that "harm" under the ESA includes significant habitat modification or degradation that, in fact, kills or injures wildlife by impairing essential behavior patterns. That interpretation is consistent with the statute's text, structure, and overarching conservation purpose, which extends beyond preventing direct physical harm to individuals and includes preserving the ecosystems upon which endangered species depend. The record contained substantial expert evidence that ungulate browsing severely degraded the mamane–naio forest, preventing regeneration, damaging mature trees, and eliminating essential food sources and nesting sites. The consequent starvation, reduced reproductive success, and loss of shelter constituted actual injury and death to Palila attributable to habitat destruction. Causation was satisfied because DLNR was not a passive landowner; it actively introduced, maintained, and managed the ungulate herds for sport hunting within the Palila's critical habitat and resisted complete eradication. This management regime foreseeably and proximately produced the habitat conditions that harmed the Palila. The ESA's definition of "person" expressly includes state agencies, bringing DLNR within § 9's prohibition. Given an ongoing, concrete violation, the broad remedial purposes of the ESA and the citizen-suit provision warranted injunctive relief compelling the removal of the feral sheep and goats from the habitat. The court rejected the notion that only direct killing qualifies as a "take," emphasizing that Congress protected species through preservation of the habitats essential to their survival.
Palila established, early and emphatically, that ESA § 9 reaches significant habitat modification that actually harms a listed species and that state agencies can be enjoined for management practices that degrade critical habitat. It is frequently cited for the proposition that "take" encompasses indirect but foreseeable harms mediated through habitat destruction, laying doctrinal groundwork later endorsed by the Supreme Court in Babbitt v. Sweet Home (1995). The case also demonstrates the ESA's powerful remedial reach—courts can compel concrete, on-the-ground habitat restoration measures, including eradication of invasive or introduced animals, when necessary to prevent ongoing takes. For law students, Palila is foundational on: (1) the scope of ESA "take" and the legality of the regulatory definition of "harm"; (2) the applicability of ESA § 9 to state agencies as "persons"; (3) evidentiary showings linking habitat modification to actual injury; and (4) the availability and breadth of injunctive relief under the ESA's citizen-suit mechanism.
Palila v. Hawaii DLNR crystallized a core ESA doctrine: the Act protects not only individual animals from direct physical harm but also the ecological conditions necessary for their survival. By holding that state-sanctioned habitat degradation can be a prohibited "take," the Ninth Circuit empowered courts to address the root causes of species decline and compelled government agencies to align wildlife-management objectives with federal conservation mandates.