PALILA VERSUS N.R.A.

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But what about willful destruction of the habitat that a species requires for its survival? Couldn't that also be considered a "taking"? That was the legal theory that Michael Sherwood and the Sierra Club Legal Defense Fund used to bring the palila into a federal court to fight for its survival. In 1978, Sherwood sued the state of Hawaii for failing to protect the palila. The lead plaintif in the case was the palila itself (a legal first), with the National Audubon Society, the Hawaii Audubon Society, the Sierra Club and a Hawaiian ornithologist named Alan C. Ziegler as coplaintiffs. The theory (advanced for the first time by Sherwood) was that by allowing damage to the palila's habitat, the state of Hawaii was "taking" the species.

Not outright killing of any individual bird, but harm to the species as a whole that might well push it over the brink of extinction and would certainly make its recovery to a more healthy population size—as also required by the Endangered Species Act—difficult if not absolutely impossible. At the time it was pretty clear scientifically that the feral sheep and goats were raising hell with the palila's forest. The same could not be said about the mouflon, but that was simply because the scientists hadn't yet got around to studying the mouflon's impact on the trees. Still, the lawsuit brought by Sherwood attacked only the feral sheep and goats, expressly leaving the mouflon out of the picture.

Shooters' groups and

environmentalists should be united—not bickering.

The state of Hawaii vigorously defended itself, saying that no one was shooting palilas and that that was all the Endangered Species Act forbade. A lengthy hearing was held in federal judge Samuel P. King's court in Honolulu. Evidence was presented from a number of scientists who had determined that the sheep and goats were threatening the survival and recovery of the palila. Whether that was a violation of the law was a matter for the lawyers to argue and the court to decide: Biologically, it was an indisputable fact. Judge King in due course issued a ringing opinion that supported the palila down the line. Feral sheep and goats were indeed damaging the palila's habitat to the detriment of the long-term prospects of the bird, and that was illegal, he found.

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