Planet Earth News: Sierra Club Lawsuit Against N.R.A.

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PHOTO: VRABELPETER1
On this particular issue of the Hawaiian palila vs mouflon sheep, the rifle association is shooting its own foot.

Environmental planet earth news brief about the Sierra Club’s lawsuit against N.R.A. involving the Hawaiian bird the palila and the hunter introduced sheep the mouflon.

Environmental Planet Earth News

THE JUNE 1988 ISSUE OF THE MAGAZINE American Hunter, a
publication of the National Rifle Association, carried a
provocative article concerning a lawsuit brought by the
Sierra Club Legal Defense Fund on behalf of an endangered
Hawaiian bird, the palila, and its human defenders. The
article was based on a press release from a hunters’ group
called the Hawaii Wildlife Conservancy and its spokesman,
John Carroll, a Honolulu lawyer who represented a number of
Hawaiian sport hunters in the lawsuit. Having lost in
court, Mr. Carroll evidently decided to take his arguments
to the press. Given the accuracy of his press release, it’s
no wonder he did not prevail in a court of law. Here’s a
synopsis of the story behind the story.

The palila is a small honeycreeper, about the size of a
sparrow. It, along with most other native Hawaiian birds
and a horrifying number of endemic plants (an estimated 800
species), is endangered. Most of the plants have yet to be
placed on the federal government’s endangered-species list;
the palila, however, was “listed” in 1967. The forces that
have brought so much of Hawaii’s wildlife to the brink of
extinction–and pushed some species over–are
many and varied. Over half of Hawaii’s original native
forests have been cleared by native Hawaiians for taro
growing and by later residents for pineapple, sugar cane
and other agricultural endeavors.

Spraying of pesticides and herbicides is a potent modern
threat. But competition from exotic (Hawaiian
conservationists prefer to call them “alien”) species is
also an important cause of extinction and near extinction.
Plants and animals introduced to the islands from other
lands have competed all too successfully with native
species. The palila very nearly fell victim to this last
threat.

Three decades ago, at the instigation of sport hunters, the
Hawaii Department of Land and Natural Resources released on
the Big Island a strain of wild European sheep known as
mouflon, hoping that they would prosper, multiply and
become a reliable game population. The mouflon gained a
quick foothold, joining feral sheep and goats first brought
to the islands by missionaries in the late 1700s. The
introduced animals found the forage on the mid and upper
slopes of Mauna Kea volcano quite satisfactory.
Unfortunately for all concerned, the food preferred by the
interlopers–tender leaves and shoots from the native
mamane-naio forest–is precisely what the palila
requires to survive. As the population of sheep and goats
grew larger, their browsing began to tell on the forest,
suppressing new growth to the point where the palila
population began a precipitous plunge. The Endangered
Species Act, which became law in 1973, forbids the “taking”
of endangered species–taking being a catchall
expression that includes outright killing as well as
harming, harassing, trapping or wounding.

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.

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.

The Hawaii Department of Natural Resources was in violation
of the Endangered Species Act by allowing the habitat to be
so damaged. Judge King ordered the state to remove the
feral sheep and goats. The state appealed to the Court of
Appeals, which studied the case, heard oral arguments from
Sherwood and his counterpart on the other side, and in 1981
forcefully sustained judge King, finding, as he had, that,
in violation of the law, the alien invaders were wiping out
the native forest that the birds depended on. The feral
sheep and goats were banished from the palila’s range.

Meanwhile, scientists were documenting the impact mouflon
sheep were having on the mamane forest. To no one’s
surprise, they discovered that the same thing was
happening: The mouflon were eating the palila out of house
and home, and, if something drastic wasn’t done, the palila
might well vanish–perhaps within no more than 20 to
30 years.

The conservationists swung into action. They made
formal request to the Hawaii Department of Land and Natural
Resources to remove the mouflons. The Department refused.
The same plaintiffs, again led symbolically by the palila
itself, threatened to sue. Eventually, they did sue, in
1985, and this time there was a full-blown, five-day trial.
The case was in most respects a carbon copy of the original
one. The plaintiffs were the same. The defendants were the
same (except that this time several Hawaii sport hunting
organizations and individuals joined the lawsuit on the
side of the state). Many of the witnesses were the same. The lawyer for the palila was the same. The judge was the
same.

And the outcome was the same: In November 1986 Judge
King found that the mouflon sheep were harming the palila
and ordered them removed.

Again the state appealed,
although its heart did not seem to be in the action, having
already spent not a few taxpayer dollars on its futile
defense of the original case. The hunters would not let the
state give up, however. On July 22, 1988, the Ninth Circuit
Court of Appeals affirmed.

The hunters still seem
disinclined to give up, even in the face of defeat after
stinging defeat in various courts of law, and have
apparently decided to take their case to the public.

The American Hunter article is presented in a regular
column titled “Hunting–An American Tradition.” It
says that the palila “might be endangered,” that “the
`environmentalists’ never documented a single instance of
adverse modification of… habitat showing that the
presence of mouflons `harmed’ the palila . . . , “that the
judge erred seriously in his decision and that the actual
intention of “misguided environmentalists” may be “to
exterminate America’s other wild game.

“The article, in short, is quite fantastic–as in
“based on fantasy.” Still, the piece and the press release
it was based on have found their way into quite a few
mailboxes and newspapers by now, and could well do some
damage, since simple inaccuracy has seldom sufficed to keep
a vigorous assertion from being published or believed. The
most serious charge is that the palila is not being harmed
by the mouflon sheep. Here’s what Mike Sherwood has to say
regarding that.

“Every witness who addressed this question testified that
the mouflon are in fact harming the palila because the
sheep eat mamane tree leaves, bark and, most important,
young seedlings and shoots. Mamane happens to be the
favored food item for the mouflon–the biologists
refer to it as an ‘ice cream’ plant for the sheep.
Moreover, because there were no naturally occurring
browsing and grazing mammals in Hawaii, the mamane had no
need to evolve defenses (such as thorns, bitter-tasting
bark or poisonous sap) to browsing or grazing pressure.
Thus, as the older mamane trees are killed or die off
naturally, insufficient new trees are being allowed to grow
to maturity to replace them, and the forest declines. It is
prevention of mamane regeneration caused by the eating of
shoots and seedlings that is the critical problem. Because
the palila cannot survive without mamane, if the forest
were allowed to continue its decline, eventually the palila
would go extinct. “Virtually every witness agreed with all
this, including expert witnesses for both the state and the
hunters.

“The other charge–that “misguided environmentalists”
seek to eliminate America’s wild game–is plain silly.
What the author may have meant is that environmentalists
would like to eliminate alien animals when they compete
with native creatures, especially when they are harming
those natives. Many people certainly believe that, though
it can be fiercely controversial. (Some years ago, for
example, the Park Service took steps to remove introduced
wild burros from the Grand Canyon, which proved very
unpopular in some circles.) It’s a complicated issue and
deserves careful examination in each specific instance
where it arises.

The palila/mouflon situation, however, is far simpler than
most similar examples of the problem. Mouflon sheep have
resided in Hawaii for less than 30 years; there’s no
long-term tradition of mouflon-hunting on Mauna Kea; and
mouflon sheep exist in several other places in Hawaii,
where they could be hunted. Finally, there may be a happy
ending to this 10-year-old legal battle: Scientists report
that the mamane-naio forest is improving nicely since the
last mouflon were removed in early 1988, and that the
palila population seems to be rebounding as well, up by as
much as 25% in the same period.

Editor’s Note: Hunters in general, of course, are the major source of money for the
protection of wildlife habitat, both for game and non game
species. And responsible hunters are, themselves, often
under either ignorant or unfair attack. For
that side of
the story, turn to page 98 of this issue .

Tom Turner, a writer and editor who’s worked in the environmental field for 18 years, is with the Sierra Club Legal Defense Fund, an independent environmental law firm that represents many organizations across the country. It is supported principally by private donations. For more information, write Sierra Club Legal Defense Fund, San Francisco, CA.