“Unless the fence is repaired, the birds don’t have much of a chance, do they? The numbers look pretty terrible.”
The comment came from U.S. District Judge Samuel King at a May hearing on a motion filed by Earthjustice to force the state Department of Land and Natural Resources to build a fence around Mauna Kea to protect the endangered palila (Loxioides bailleui), a Hawaiian honeycreeper.
It’s been 30 years since King first ordered the state to remove feral ungulates from palila critical habitat, which consists of a 200 square kilometer ring of mamane and mamane-naio forest around the upper slopes of Mauna Kea. Today, large numbers of mouflon sheep still roam the mountain, destroying the seedlings of mamane trees, which palila need for food, shelter, and nesting.
Meanwhile, a recent study has shown that the palila’s numbers are tanking.
Whether or not mouflon are directly responsible for the recent decline, everyone involved in the case agrees that ungulate eradication is key to the palila’s recovery. But despite the state’s eradication efforts, the sheep population continues to grow. So on March 23, on behalf of the palila, the Hawai`i Audubon Society, the National Audubon Society, and Alan C. Ziegler, Earthjustice attorneys Koalani Kaulukukui and David Henkin filed a motion in federal District Court to enforce King’s 1979, 1987, and 1998 eradication orders.
“If this hearing does not conclude with a definite and binding commitment by the state to see that the circum-Mauna Kea ungulate-proof fence is built by [mid-2011], and if the ungulates are not eradicated shortly thereafter (eradicated in the true sense of the word, not the state’s shibai representation of it), then I feel strongly that we will not get this opportunity again,” wrote Big Island conservation scientist Rick Warshauer in an email to Earthjustice before the hearing. “Forestalling the needed and inevitable solution for saving the palila is not an acceptable alternative. Unfortunately, we have accepted this non-solution by the state for three decades, but should now seek a final solution.”
But after holding two short hearings in mid-May, King denied – without prejudice – the motion on May 21, and gave the DLNR until mid-August to prove that it’s making progress.
While DLNR wildlife biologists Scott Fretz and David Leonard agree with the plaintiffs that the entire mountain needs to be fenced and reforested and that the palila’s recent slide warrants more aggressive management, they point out that the department has never had sufficient money to do what it needs to. Even so, Leonard, with the DLNR’s Division of Forestry and Wildlife, says he believes the palila will live to see the benefits of the state’s recovery efforts.
The likelihood that the palila population will continue its current trajectory is “relatively small,” unless the birds get hit with “wild cards” like mosquito-borne disease or fire, he said.
Case History
In 1978, the plaintiffs filed their first lawsuit against the state, claiming that it was violating the Endangered Species Act by maintaining sheep and goats that were destroying palila critical habitat. A year later, judge King agreed and found that the state’s game management on Mauna Kea constituted an unlawful taking of palila. He ordered the state to stop maintaining sheep and goat populations in the critical habitat area and eradicate them by July 31, 1981.
The state failed to meet the deadline. Shortly thereafter, a study showing that mouflon sheep posed as big a threat to mamane as did feral sheep and goats prompted the plaintiffs to seek an amendment to King’s order to add mouflon and hybrid mouflon/feral sheep. King agreed and on January 27, 1987, ordered the state to remove all mouflon, hybrid, and feral sheep from the palila’s critical habitat within one year.
While it appeared that the state had eradicated goats by the deadline, the sheep persisted. According to court documents, the plaintiffs alleged that the state had relaxed its eradication efforts to appease hunters (the palila critical habitat and the DLNR’s Mauna Kea Game Management Area largely overlap). Lacking funding and a helicopter rental contract, the documents state, the DLNR halted its staff hunting and aerial surveys in 1995. Surveys resumed in 1996, but staff hunting did not.
Although Earthjustice and the state signed an agreement that the state would resume aerial shooting in 1998, an October 8 letter from then-Governor Ben Cayetano halted it briefly.
Cayetano rescinded his letter ten days later and on October 30, 1998, the parties entered into another agreement – which became an order with the court on November 10 – whereby the state would “use its best efforts to minimize migration of goats, feral sheep, mouflon sheep, and hybrid mouflon/feral sheep, into the critical habitat for the palila on Mauna Kea. Those efforts may include but shall not be limited to: maintenance, repair and upgrading of the forest reserve perimeter fencing, and periodic surveys to detect breaks in the fence.” The state would also continue an eradication effort using public hunting and aerial shooting.
Less than a year after signing the agreement, the DLNR, joining an appeal filed by a hunters’ group to stay King’s orders, asked the judge to allow it to maintain a sheep herd of 200 animals. At the time, Jon Giffin, who was then head of the Hawai`i Island branch of the DOFAW, testified that while sheep inhibited mamane growth in the 1970s and 1980s, “This trend has been reversed….[I]n the mid to late 1990s, it no longer appears that the sheep are an inhibiting factor to the mamane forest.”
The state’s eradication efforts had allowed the forest to grow larger and denser, Giffin noted, but the vastness of the critical habitat, combined with the inaccessibility and dense vegetation of certain areas, made “it extremely difficult, if not impossible, to locate and kill all the sheep on Mauna Kea.”
He added that the 53 miles of fence, erected in the 1930s and 1940s, that belts the mamane forest were continuously damaged by vandals, washouts, falling trees, and cattle. What’s more, he wrote, the denser forest had made the sheep, which had learned to hide from helicopters, harder to find and aerial shooting less effective.
King denied the state’s and the hunters’ requests on October 19, 1999.
In the years following King’s last order, the state continued its eradication efforts through public hunting and aerial shooting, taking between about 150 to a few hundred sheep from Mauna Kea every six months. From the second half of 2006 to the first half of 2008, however, the number of sheep taken jumped to an average of more than 600 every six months.
At the same time the number of sheep taken from Mauna Kea was doubling, scientists with state and federal agencies had discovered that the core palila population, which occupies only five percent of the bird’s original range, was declining.
Contraction
In May 2008, the Hawai`i Audubon Society published an article in its journal `Elepaio by Leonard of DOFAW and Paul Banko, Kevin Brinck, Chris Farmer and Richard Camp of the U.S. Geological Survey Biological Resource Discipline. They showed that population counts over the previous five years suggested the bird’s numbers were dropping rapidly in the core palila habitat on the western slope of Mauna Kea. Palila have all but disappeared from the eastern and southern slopes, and while a small sub-population of translocated and captive-bred birds have successfully bred on the northern slope, the article states, it is “not yet self-sustaining.”
Palila population estimates have fluctuated wildly since data collection first began in 1980 – with a high of nearly 7,000 in 1996 to a low of fewer than 2,000 in 1992 – but had never indicated any statistically significant decline until now.
“From 2003 to 2007, the estimated number of palila in the core population has declined by 58 percent,” the article states, adding that the 2008 population estimate indicated a continuing decline. In 2003, the palila population was estimated to be 5,354; by 2008, that estimate had dropped to 2,237.
“[I]f the trajectory continues without change, the species will be extinct by 2012,” the article states.
The decline of palila in the core and their apparent disappearance from the southern and eastern slopes “indicate that their dramatic range contraction may be continuing,” the article continues. “This reduction is unexpected given that [biologists in 1999] reported an improvement in palila habitat following the periodic removal of introduced ungulates. Other factors may be acting in concert with the current drought and the concomitant reduction in mamane seed production to produce the sharp population decline we describe here,” it states.
Although the authors said that the trend was troubling, since it seems to have no apparent cause, they concluded that curtailing the palila’s known threats is a necessary – even if not sufficient – condition of stopping the decline and preventing another Hawaiian bird species from going extinct.
In an interview with Environment Hawai`i, Banko added that palila recovery must address a variety of threats. For example, feral cats kill about 10-11 percent of palila chicks. “But it’s like peeling an onion. If you don’t peel that top layer, which is ungulates, [the rest] really doesn’t matter,” he said. He added that the failure so far to establish new, self-sustaining populations by translocating palila from their core habitat or by releasing birds raised in captivity has shown that those techniques are not going to “save the day at the last minute.” Given the significant time and money required to make translocation and captive release work, he added, it’s best not to let the population get to the point where those are the only options.
Fretz, DOFAW’s wildlife program manager, told Environment Hawai`i that the article prompted his agency to redirect its focus on the palila’s core habitat. Until recently, the division was spending most of its palila-related efforts setting up new habitat for the birds on parcels that had been set aside under a Saddle Road realignment mitigation agreement with the Federal Highways Administration, the U.S. Fish and Wildlife Service, and other federal agencies.
“It was a change for us,” Fretz says. “Five years ago, we assumed the population was stable…Mitigation was set up, the USGS [one of the parties to the Saddle Road agreement] was doing predator control. According to the recovery plan, we would establish a new population. Under the Saddle Road mitigation we put up a big fence and our strategy was to continue to control ungulates in the core habitat [on the western slope] and put a team on the north slope to plant mamane. The USGS would translocate birds and we would also do captive propagation. Five years later, we realized that for the fifth year there was a decline. The USGS ran out of money for predator control in the core so we expanded the size of our team there (from one person to five) and picked up predator control in the core.”
Back to Court
Researchers and resource managers weren’t the only ones alarmed by the drop in palila numbers. Within a couple of months of publication of the `Elepaio article, Kaulukukui of Earthjustice began to hound the DLNR to develop and implement a more aggressive recovery plan. At the time, the DLNR was in the process of acquiring a grant from the Honolulu office of the U.S. Fish and Wildlife Service, which had managed to scrape together some $900,000 in discretionary funds to help pay for fencing palila critical habitat.
Under the grant, the state has until October 1 to come up with a plan for the money, but that was not soon enough, or good enough, for the plaintiffs in the case. And on March 23, they filed a motion to enforce the three previous eradication orders and to compel the state to construct, no later than June 1, 2011, an ungulate-proof fence around the perimeter of the critical habitat. In the late 1930s or early 1940s, they argued, Civilian Conservation Corps crews managed to erect the existing 53-mile fence in under 20 months. They added that the DLNR had let the fence fall into disrepair and had not inspected or maintained it for several years after the 1998 order.
Earthjustice also included in its filings a December 2008 declaration from Banko, who admitted that while it is impossible to nail down how various factors are contributing to the current population decline, those factors are probably “working in conjunction with the drought conditions that have prevailed over the last five years.” Resource managers can’t stop a drought, he continued, but its effects on palila can be mitigated.
“Our research has shown that while pod production during times of drought is reduced, mamane nevertheless continue to produce some pods,” he said. “Thus, if more trees were available, there would be more pods and other food resources available in times of drought (as well as in times of normal rainfall). In other words, given that palila will have more to eat if there are more trees, it is possible to reduce the effects of drought (or other environmental factors that reduce the availability of mamane pods) by actively increasing the density of trees in the forest.”
Banko added that sheep, sometimes traveling in herds of more than 100, have been seen “from the top to the bottom of palila habitat” and that they continue to browse the lower limbs of mamane trees and severely damage saplings and seedlings.
In his April 27 response, deputy attorney general Michael Lau blamed the spike in sheep numbers on a recent breach in the fence. In November 2008, DOFAW staff discovered that roughly 3,000 feet of fencing had been removed along the southern slope, behind the Army’s Pohakuloa Training Area headquarters. Lau wrote that an Army representative had said it would start repairing the fence in the spring or summer of 2009 (that timeline has since become “fluid,” according to Leonard) and that DOFAW would increase its aerial hunts from two to four a year to get the sheep numbers down.
Lau also pointed out that the fence Earthjustice proposed would cost the state at least $5,820,000, far more than the department can afford given the current economy and severe budget cuts. He added that the court’s orders do not require a fence to be built and that although the state does plan to build one, it only has money to do a portion of it right now.
Finally, he noted that the forest on Mauna Kea continues to improve as a result of the state’s eradication efforts and that even the state’s palila experts admit that “there seems to be no overt cause for the decline…”
DOFAW administrator Paul Conry added in a declaration that his division’s entire endangered species budget for 2009 is only $3.2 million, plus about $4-5 million in federal matching funds.
Twice in May, Kaulukukui, Henkin and Lau appeared before Judge King to discuss whether or not he should order the state to build a new perimeter fence around palila critical habitat. King seemed concerned about the palila’s chances for survival and asked for specifics on what the Army planned to do about its 3,000-foot gap and what the state planned to do with its $900,000 FWS grant.
DOFAW’s pre-application for the grant includes a 10-year, $10-12 million budget to restore palila habitat. Enclosing the entire critical habitat within the first five years would cost between $5.8 million and $6.8 million; aerial sheep control for the same time period would cost $750,000. Ungulate eradication after the fence is built would cost about $2-3 million, and predator control and fence repair for the entire 10-year period would cost $2 million. According to Fretz, the $900,000 from the FWS will be used to construct seven miles of fence.
While Lau argued that the DLNR has been “very reasonable” in its approach to controlling ungulates with limited funds, Kaulukukui countered that it could have done and can do better.
“Nothing…changes the fact that they may have gone out one time every six months [to inspect or maintain the fence]. There are downed portions of the fence all over the place. It’s a sieve,” she said, adding that construction of the partial fence the state has planned won’t start until 2010 and has “no end in sight.” Henkin added that it will take longer for the state to get the money for a perimeter fence if it does not have a deadline.
King, while alarmed at the drop in the number of palila, did not seem to feel the same sense of urgency as the plaintiffs and their attorneys. At one point during the second hearing, King told Kaulukukui, “It looks like things are on the move [with the state]…Can’t you wait until three, four, five, six months to see what they’re doing?”
And in the end, King chose to wait and see, writing in his May 21 order denying Earthjustice’s motion that he was not convinced that the state had breached its duty “to use…best efforts to minimize migration” of ungulates. To ensure that the state follows through with its plans for the fence, King scheduled a status conference for August 21.
What’s next?
Whatever King ultimately decides about the fence, Banko says he’s frustrated by the fact that palila management efforts never really gained momentum despite all the additional attention it got from the federal lawsuits and the influx of funds resulting from the Saddle Road mitigation agreement, which expires in 2012.
“Everybody’s agenda is absolutely full. It’s not like people laughed it off,” he says.
But according to the Conservation Council for Hawai`i, it was more than that. Mistakes were made. CCH pointed out in an action alert last year that biologists wanting to translocate or release birds were unable to access one of the Saddle Road conservation parcels, Pu`u Mali, for several years and that the fence around the other mitigation parcel, Ka`ohe, was not designed to exclude mouflon. The alert adds that the two parcels lacked funding from the Federal Highways Administration and a restoration plan.
“Clearly, more than 10 years are needed to reforest the two palila mitigation parcels and establish self-sustaining palila populations,” the alert states.
To keep palila management efforts going, Leonard and Fretz say that the state is seeking funding from a variety of sources, including the American Bird Conservancy, federal stimulus money, Section 6 funds, the FWS, and the Natural Resources Conservation Service.
“We need to find a way to shake the money loose,” Fretz says, adding that his staff is ready to do whatever it takes to save the palila. “What we lack is the money. I tell everybody that. Decisions about money that are made elsewhere [the Legislature and the administration], wehave no control over those.”
Earthjustice has argued that a court-imposed deadline for the fence might help the state get more funds from the Legislature, but according to Leonard, “a legal mandate is never a criterion I’ve seen in an RFP [request for proposals].”
— Teresa Dawson
Volume 20, Number 1 July 2009
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