U.S. District Judge Samuel P. King has denied the requests of hunters and the state of Hawai’i to stop the court-ordered eradication of sheep from an area of Mauna Kea, on the island of Hawai’i, that is critical habitat for the endangered palila (Loxiodes bailleui). The bird, which depends almost exclusively on mamane trees for its survival, was imperiled by the presence on the mountain of mouflon, sheep and other ungulates, whose browsing kept the mamane trees from regenerating.
As reported in the October issue of Environment Hawai’i (“[url=/members_archives/archives_more.php?id=718_0_25_0_C]Hunters, State Stir Up Legal Action Over Removal of Sheep from Mauna Kea[/url]”), the hunters’ group Sportsmen of Hawai’i, and later the state, argued that it was in the interests of the palila to keep a herd of at least 200 sheep on the mountain, claiming that their grazing keeps down the growth of fire-prone grasses and thus reduces the threat of fire on the mountain.
In his order, issued October 13, King at times came close to mocking the arguments of the state and hunters. “The Sportsmen are to be commended for their concern over the palila’s survival,” King wrote. But he noted, “the propagation that ungulates are the best defense against fire suggests that in order to save the palila from extinction by fire we should increase the number of sheep so they can share in the destruction of the palila.”
King’s order describes the hunters’ political reach, which extends not only to Governor Cayetano, but also U.S. Representative Patsy Mink. In letters written in late 1998 to Cayetano and then-Department of Land and Natural Resources Director Mike Wilson, Mink asked them to “reconsider the decision to totally eradicate sheep from Mauna Kea.” The few remaining should be retained, Mink suggested, to control the spread of gorse, a nasty, thorny shrub that covers hundreds of acres on Mauna Kea. “The gorse seed pods explode sending seeds that sprout and are eaten by the sheep. This ‘natural’ control must be retained if the slopes of Mauna Kea are to be saved from gorse,” Mink wrote.
King was not impressed: “No studies have been cited as to how many sheep would be needed to control the growth of gorse. Obviously, this ‘remnant herd of 150 are insufficient as ‘gorse infestation’ is apparently proceeding apace.”
“Furthermore,” King continued, “the sheep on Mauna Kea do not limit their browsing only to baby gorse seedlings; they also devour baby mamane seedlings. The latter aspect of their appetite was an important consideration in the earlier orders for their removal. To increase the number of sheep to control gorse infestation would simultaneously endanger mamane growth.
Under federal court rules, the court order could be revisited if it could be shown that there was a change in actual circumstances or in the law. Waimea attorney John Carroll argued that both these conditions had been met.
Carroll’s argument for a change in the law was based on an opinion from U.S. Supreme Court Justice Sandra Day O’Connor in a different case, Babbit vs. Sweet Home Chapter, et al., in which she questions the order in an earlier palila litigation. “The statement is dictum by a single justice who is in the minority on this issue,” Judge King noted. “This hardly qualifies as a change in the law.”
Carroll tried to gain mileage by noting that the three dissent in Supreme Court justices in the Sweet Home case joined with O’Connor in criticizing the second round of litigation over the palila. This drew nothing more from King than a footnote aside: “By definition, a dissent does not establish the law.”
“Neither has there been a significant change in factual conditions,” King continued. “The arguments that the presence of sheep on Mauna Kea had nothing to do with the decline of the palila population and that a remnant sheep population will not harm the palila or its habitat are disingenuous. Ungulates were ordered removed because they interfere with mamane growth by eating and trampling mamane seedlings. Certainly as more and more ungulates are removed from the area their ‘devastating effect on the mamane forest’ becomes less and less. This may provide an amusing mathematical exercise but it is not a feature of the Endangered Species Act.”
“Of course,” he wrote, “logically a small enough number of sheep will have an immeasurable effect on mamane regeneration. This assumes cooperation from the sheep to limit themselves to a ‘remnant population’ that does not nibble too many mamane seedlings. On the other hand, mouflon sheep can always be reintroduced on Mauna Kea. Palila once extinct are gone forever. In the weighing of the relative merits of the situation, there has not been a shifting of the original equities.”
Volume 10, Number 5 November 1999
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