Palila, et al v. Department of Land a

Filing 344

ORDER GRANTING DEFENDANTS' MOTION FOR DECLARATORY AND INJUNCTIVE RELIEF re 331 , 343 - Signed by JUDGE J. MICHAEL SEABRIGHT on 4/8/13. "For the foregoing reasons, Defendants' Motion for Declaratory and Injunctive Relief is GRANTED. Federal law preempts application of the challenged laws -- Hawaii County Code §§ 14-111, -112, & 1-10(a); and HRS § 263-10 -- such that Defendants, and their duly appointed agents, may proceed to comply with the t erms of the 1998 Stipulated Order, as indicated is planned in Defendants' Motion. If Defendants (or a person such as a contractor working under specific direction of Defendants) are engaged in complying with the terms of the 1998 Stipulated O rder, they cannot be prosecuted under Hawaii County Code §§ 14-111,-112, & 1-10(a); or HRS § 263-10." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

PALILA (Loxioides bailleui), an
endangered species, et al.;

)
)
)
Plaintiffs,
)
)
vs.
)
)
HAWAII DEPARTMENT OF LAND )
AND NATURAL RESOURCES; and )
WILLIAM J. AILA, JR., in his
)
capacity as Chairperson of the Hawaii )
Board of Land and Natural Resources, )
)
Defendants,
)
)
and
)
)
SPORTSMEN OF HAWAII, et al.,
)
)
Defendant-Intervenors.
)
_______________________________ )

CIVIL NO. 78-00030 JMS
ORDER GRANTING DEFENDANTS’
MOTION FOR DECLARATORY
AND INJUNCTIVE RELIEF

ORDER GRANTING DEFENDANTS’ MOTION FOR DECLARATORY
AND INJUNCTIVE RELIEF
I. INTRODUCTION
The Palila has long been listed as endangered under the Endangered
Species Act, 16 U.S.C. § 1531 et seq. Accordingly, Defendants State of Hawaii
Department of Land and Natural Resources, and William J. Aila, Jr., Chairperson
of the Board of Land and Natural Resources, in his official capacity

(“Defendants”), have certain responsibilities and duties under law towards
protection of the Palila. In particular, on November 10, 1998, Plaintiffs and
Defendants entered into a Stipulation that was approved and ordered by the
Honorable Samuel P. King (the “1998 Stipulated Order”).1 The 1998 Stipulated
Order applies “for so long as the court’s judgment and orders filed August 1, 1979,
as amended, and January 27, 1987, are still in full force and effect.” Doc. No. 3316, Defs.’ Mot. Ex. C at 2. The provision of the 1998 Stipulated Order at issue is:
3. Beginning November 18, 1998, and semi-annually
thereafter the State shall do aerial sightings in the critical
habitat area. If any ungulates are sighted in that area, the
State will commence aerial shooting and will shoot any
ungulates sighted in that area. The State may combine
aerial sighting and shooting activities. The State and
Plaintiffs, by mutual agreement, may modify the time
frame for the aerial sightings or aerial shooting or both
without amending this stipulation.
Id. at 3.
In 2012, the County of Hawaii enacted an Ordinance regarding
“Animal Eradication.” It provides:
Section 14-111. Findings and purpose.
(a) The County of Hawaii is charged with the ultimate
responsibility to protect, preserve, and enhance the

1

The case was reassigned to the undersigned on December 15, 2010, following Judge
King’s death on December 7, 2010. Doc. No. 327.

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health, safety, and welfare of the people of Hawaii Island.
With regard to the bond between the people and the land,
the County of Hawaii hereby finds:
(1) Animal eradication by aerial shooting is in
conflict with the cultural and traditional values of the
people of Hawaii County;
(2) Aerial hunting eradication creates unnecessary
risk to human life, while also disturbing endangered flora
and fauna; and
(3) Animal population control measures can be
performed in a manner that is harmonious with the
culture, values, and principles of the people.
(b) The purpose of this article is to declare:
(1) Animal eradication by aerial shooting on
Hawaii Island shall no longer be practiced;
(2) The State of Hawaii should conform and
comply with the provisions of this article;
(3) Other methods of animal population control
must be used. Any such method to be enacted will take
into account the will of the people, which requires
effective communication and a concerted effort to remain
linked to the people that take responsibility for the land
and its resources; and
(4) The State of Hawaii should increase public
access to the areas of Hawaii Island that will allow
hunters and gatherers the opportunity to provide
subsistence to the families of Hawaii Island. Valuable
food resources should be consumed rather than wasted.
Section 14-112. Aerial eradication of animals;
unlawful.
It is a violation of this article for any person to
engage in the eradication of any animal for any reason
while being transported by helicopter, airplane, or any
other similar means.
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Haw. Cnty. Code §§ 14-111 & -112 (2012). Although §§ 14-111 & -112 do not
have a specific penalty clause, a general provision of the Hawaii County Code to
that effect might otherwise apply. See Haw. Cnty. Code § 1-10(a) (“Where there is
a violation of a provision of this Code for which no penalty is provided, the person
violating the provision shall be subject to a fine of not more than $100 for each
offense, or to imprisonment of not more than ninety days, or to both.”).
Defendants, joined substantively by Plaintiffs, have filed a Motion for
Declaratory and Injunctive Relief (“Preemption Motion”), seeking (1) a declaration
that these provision of the Hawaii County Code are preempted by the 1998
Stipulated Order “as applied to the State’s aerial eradication efforts,” and (2) an
order “enjoining the County of Hawaii from prosecuting any person who
participates in aerial eradication efforts sponsored by the State.” Doc. No. 331,
Defs.’ Mot. at 2; Doc. No. 335. In its Opposition, the County of Hawaii raises the
possibility, although remote, of prosecution under Hawaii Revised Statutes
(“HRS”) § 263-10 as well.2 Thus, in their Reply, Defendants also ask for the same
relief (a declaration as to preemption and a corresponding order allowing
2

HRS § 263-10 provides:

Any aeronaut or passenger who, while in flight in, across or above the State,
intentionally kills or attempts to kill any birds or animals shall be guilty of a
misdemeanor and punished by a fine of not more than $1,000, or by imprisonment
for not more than one year, or both.

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enforcement of the 1998 Stipulated Order) as to HRS § 263-10. The Motion and
Joinder were heard on April 8, 2013.
II. DISCUSSION
This proceeding is strictly limited to the jurisdictional and preemption
issues raised in the Preemption Motion. That is, the proceeding starts with the
premise that the court’s prior Orders (e.g., the 1998 Stipulated Order -- and the
Judgments and Orders of August 1, 1979 and January 27, 1987, upon which the
1998 Stipulated Order was based) remain in effect. These Judgments and Orders
have created corresponding legal obligations that remain valid and binding Orders
of this court despite the passage of time. It is not appropriate in this proceeding,
and at this time, to revisit the prior Orders. It is also not appropriate (as Plaintiffs
suggest) to make any findings regarding (1) past alleged noncompliance with the
1998 Stipulated Order, or (2) future enforcement of existing Orders. It is sufficient
for present purposes for the court to emphasize that Defendants remain obligated to
comply with the terms to which they agreed in the 1998 Stipulated Order.
Having considered the record in this case, as well as the written and
oral arguments of the parties, the court concludes as follows:
1. The court has jurisdiction over the County of Hawaii under the All
Writs Act, 28 U.S.C. § 1651(a), which provides that “[t]he Supreme Court and all
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courts established by Act of Congress may issue all writs necessary or appropriate
in aid of their respective jurisdictions and agreeable to the usages and principles of
law.” This Act “authorize[s] a federal court ‘to issue such commands . . . as may
be necessary or appropriate to effectuate and prevent the frustration of orders it has
previously issued in its exercise of jurisdiction otherwise obtained.’” Penn.
Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 24, 40 (1985) (quoting United
States v. N.Y. Tel. Co., 434 U.S. 159, 172 (1977)). “The power conferred by the
Act extends, under appropriate circumstances, to persons who, though not parties
to the original action or engaged in wrongdoing, are in a position to frustrate the
implementation of a court order or the proper administration of justice.” N.Y. Tel.
Co., 434 U.S. at 174 (citations omitted). That is, although the County of Hawaii is
not a party to this action, the court has the power and jurisdiction to make
declarations regarding the County of Hawaii Ordinances at issue, and (if necessary)
to enjoin the County of Hawaii from enforcing certain laws that are preempted by
federal law.
2. This action is ripe for consideration. True, “[t]he mere existence of
[an ordinance], which may or may not ever be applied to plaintiffs, is not sufficient
to create a case or controversy within the meaning of Article III.” Cal. Tow Truck
Ass’n v. City & Cnty. of S.F., 693 F.3d 847, 865-66 (9th Cir. 2012) (quoting Cal.
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San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)).
But here, the County of Hawaii prosecutor has specifically refused to agree not to
prosecute Defendants if they, or agents such as contractors, are engaged in
enforcement of the 1998 Stipulated Order. The County of Hawaii prosecutor -with specific knowledge of a planned “aerial sighting” (likely to include “aerial
shooting” of ungulates) in April 2013 -- has declined to stipulate that the County of
Hawaii will not prosecute Defendants, or their agents, for such planned activity.
The Ordinances at issue, Hawaii County Code §§ 14-111, -112, & 1-10(a), can
reasonably be read together to create the possibility that the planned activity would
violate the Ordinances and could subject Defendants or their agents to monetary
penalties and/or imprisonment.
Similarly -- although the possibility may be remote3 -- the County of
Hawaii prosecutor has now also indicated that “[HRS § 263-10] is a criminal
statute that could apply to individuals that are not State employees,” and that it is
“[his] opinion that this issue is not ripe for my office to stipulate that we would not
prosecute under [HRS § 263-10] at this time.” April 8, 2013 Letter of M. Roth to
Defendants’ Counsel (admitted into evidence at the April 8, 2013 hearing).
3

No one has sought to enforce HRS § 263-10 in the over twenty years that the type of
aerial activity at issue here has been taking place (and the State argues that the statute does not
apply to it in any event). See A.C. Chock, Ltd. v. Kaneshiro, 51 Haw. 87, 89, 451 P.2d 809, 811
(1969)).

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Under these circumstances, there is a reasonable basis for Defendants,
or their agents, to fear potential enforcement from prosecuting authorities.
Compare, e.g., Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1140
(9th Cir. 2000) (en banc) (holding a challenge not ripe, where there was no planned
intent to engage in conduct that would arguably violate the challenged statute).
The injury (fear of enforcement) certainly creates a very real chilling effect on
Defendants’ enforcement of the 1998 Stipulated Order, and there is a controversy
as to whether Defendants’ planned conduct would potentially subject Defendants,
or their agents, to adverse consequences for violation of a Hawaii County
Ordinance or state law.
3. Federal law preempts application of the challenged Ordinances
(and HRS § 263-10) such that Defendants must proceed to comply with the terms
of the 1998 Stipulated Order, as indicated is planned in Defendants’ Motion.
Again, even if the Hawaii County Ordinances at issue are ambiguous in allowing
prosecution for aerial shooting of the ungulates at issue here, they can be read
together to create a distinct possibility and reasonable fear of such prosecution.
That is, to the extent the County of Hawaii Ordinances at issue -- Hawaii County
Code §§ 14-111, -112, & 1-10(a) -- allow prosecution of persons who are
implementing the 1998 Stipulated Order, the Ordinances are preempted by the
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1998 Stipulated Order. Similarly, although HRS § 263-10 has not been raised
previously, the County of Hawaii has raised the potential of possible prosecution
against non-State employees, such that HRS § 263-10 is also preempted by the
1998 Stipulated Order.
Thus, the court concludes that if a person (such as a State Department
of Land and Natural Resources employee, or a contractor working under specific
direction of such a State employee) is specifically engaged in complying with the
terms of the 1998 Stipulated Order, they cannot be prosecuted under (1) Hawaii
County Code §§ 14-111, -112, & 1-10(a); or (2) HRS § 263-10. Indeed, the
County of Hawaii forthrightly admits in its filings that it is bound by the wellestablished constitutional principle that, under the supremacy clause, an
implemented consent decree and standing federal court Order applying a federal
statutory mandate (here, the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(B))
supercedes a city ordinance that prevents execution of that decree and court Order.
See, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel, 443
U.S. 658, 695 (1979) (“State-law prohibition against compliance with the District
Court’s decree cannot survive the command of the Supremacy Clause of the United
States Constitution”) (citing Cooper v. Aaron, 358 U.S. 1 (1958)).
In short, so long as Defendants, or their duly-appointed agents, are
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acting to enforce the specific terms of the 1998 Stipulated Order, they may conduct
an aerial sighting over the Palila’s critical habitat and shoot any ungulates sighted
in that area without fear of violating (1) Hawaii County Code §§ 14-111, -112, &
1-10(a); or (2) HRS § 263-10.
III. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Declaratory and
Injunctive Relief is GRANTED. Federal law preempts application of the
challenged laws -- Hawaii County Code §§ 14-111, -112, & 1-10(a); and HRS
§ 263-10 -- such that Defendants, and their duly appointed agents, may proceed to
comply with the terms of the 1998 Stipulated Order, as indicated is planned in
Defendants’ Motion.
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If Defendants (or a person such as a contractor working under specific
direction of Defendants) are engaged in complying with the terms of the 1998
Stipulated Order, they cannot be prosecuted under Hawaii County Code §§ 14-111,
-112, & 1-10(a); or HRS § 263-10.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 8, 2013.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Palila et al. v. Haw. Dep’t of Land & Natural Res. et al., Civ. No. 78-00030 JMS, Order
Granting Defendants’ Motion for Declaratory and Injunctive Relief

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