Posted on: Tuesday, July 10, 2001
Island Voices
'Alala lawsuit hurt all of us
By Keith F. Unger
Manager of McCandless Ranch in Honaunau on the Big Island
The Bush administration has recently come under fire for considering a policy whereby the U.S. Fish and Wildlife Service will not pay for judgments from environmental lawsuits. The environmental legal community is in an uproar, as it well should be. The right to sue under the Endangered Species Art has bred a genre of attorneys whose livelihoods are now being jeopardized.
Today, in Hawai'i alone, the Wildlife Service has recently settled three environmental lawsuits and is currently a defendant in six others. In the Honolulu office, the Wildlife Service has created a new position, "litigation coordinator," in an attempt to manage this incredible workload.
Valuable resources, precious time, money and manpower — a large part of the Wildlife Service's annual Hawai'i budget — are dedicated to this battle. The Wildlife Service has no control over its own endangered species agenda; it is forced to react to whatever environmental lawsuits are at the forefront.
Endangered species are not the winners; attorneys are. We, the taxpayers, foot the bill.
Prior to 1976, McCandless Ranch has cooperated with state biologists in their quest to study the 'alala (the Hawaiian crow). In 1976, McCandless Ranch disagreed with these biologists in regard to their intrusive tactics, policies and goals in the name of research. Our message was clear: Until we could all agree on 'alala recovery and research activities on McCandless Ranch, no biologists would be allowed on the property.
At the time, there were a total of 75 'alala in the wild, nine of which were located on McCandless Ranch. Thirteen years later, only 11 'alala were left in the wild, all on McCandless Ranch, where no one was allowed to "research" them. State biologists then decided the only way to "save" the 'alala was to capture these last remaining birds and send them into captivity.
McCandless disagreed and continued to deny access. Shortly thereafter, the Sierra Club Legal Defense (now EarthJustice), hired by the national and state Audubon Societies, filed suit against McCandless Ranch and the Wildlife Service under the Endangered Species Act to force access to implement the plan. Three years later, based on a National Academy of Science report, this lawsuit was settled.
The settlement agreement called for aggressive action. Trees were climbed and eggs were taken from the nesting 'alala. These eggs were incubated and hatched in captivity, and juvenile 'alala were released back onto the ranch. Success was immediate and astonishing. Unfortunately, this success was short-lived. Intrusion devastated the wild population and disease and hawk predation laid waste to this new 'alala population.
Sadly today, there are only two 'alala left in the wild.
Equally devastating was the "political" fallout from this environmental lawsuit. In order to save endangered species, the private landowner must be made a willing participant by eliminating threats and creating incentives. Trust must be established. However, as a result of this lawsuit, Wildlife Service relations with private landowners have catapulted back into the Dark Ages.
The 'alala lawsuit and the ongoing Critical Habitat lawsuit, also filed by EarthJustice, have cast a chilling spell over Hawai'i's landscape. They have caused the landowners' gates to be locked, and the loser continues to be our endangered species.
In 1994, after the settlement of our lawsuit, the Sierra Club Legal Defense Fund filed a four-pound (pounds, not pages) motion for award of attorney's fees and costs associated with the 'alala lawsuit. This colossal 253-page document researched and analyzed over 45 cases in arguing that even though the 'alala lawsuit was settled out of court, the plaintiffs had "saved" the 'alala and were therefore entitled to "reasonable and just" compensation. The grand total for two staff attorneys, one associate attorney, two law clerks and one resource analyst came to $510,264.01.
However, since this figure surpassed a consent decree, only $490,000 was requested. To ice the cake, the plaintiffs asked for an additional $19,550 just for preparing the motion to request these "reasonable" fees.
On July 1, 1994, the 'alala lawsuit officially ended when the Wildlife Service wrote a check to the Sierra Club Legal Defense Fund in the amount of $195,000. We, the taxpayers, footed the bill for this disastrous lawsuit that led to a costly program with deadly effects not only for the 'alala, but for the future of all endangered species.
The Bush administration is on the right track. Litigation will not save endangered species; people will. It's time to try something new.
