Palila v. Hawaii Dep't of Land & Natural Resources, 639 F.2d 495 (9th Cir. 1981), aff'g 471 F. Supp. 985 (D. Haw. 1979)
Palila v. Hawaii Department of Land and Natural Resources is a landmark Endangered Species Act (ESA) decision that cemented a foundational principle of modern wildlife law: the prohibition on "taking" an endangered species extends beyond direct killing or capture and includes significant habitat modification that actually kills or injures wildlife by impairing essential behaviors such as breeding, feeding, or sheltering.
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.
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.