DLNR WILDLIFE RULE - TRUTH SHEET

Why This Is Bigger Than Cats

What’s changing, why it matters, and how it could affect you

Public Hearing: August 13, 2026
Written Testimony Deadline: August 26, 2026
DLNR Public Comment:  dlnr.hawaii.gov/dofaw/comment

Hawaiʻi DLNR (Department of Land & Natural Resources) is proposing major amendments to HAR Chapter 13-124, the rules governing indigenous, threatened, endangered, introduced, and injurious wildlife.

The proposal would significantly expand both the meaning and the reach of powerful wildlife-law concepts including “take,” “harm,” and “harass.” It would broaden how these concepts may be defined and applied, while extending them beyond threatened and endangered species to all indigenous wildlife — including species that are not designated threatened or endangered. The proposal also creates new feeding restrictions and other enforcement provisions.

Hawaiʻi Animal Advocacy supports strong protection for Hawaiʻi’s native wildlife.  But strong wildlife protection also requires clear legal boundaries.

This proposal raises two simple questions every Hawaiʻi resident should understand:

These questions reach far beyond community cats.

They could potentially affect dog owners, homeowners, farmers, ranchers, landowners, businesses, animal caretakers, recreational users, drivers, and others whose ordinary activities intersect with indigenous wildlife.

A MAJOR CHANGE: FROM THREATENED & ENDANGERED SPECIES TO ALL INDIGENOUS WILDLIFE

This may be one of the most important parts of the proposal.

HRS §195D-2 contains Hawaiʻi’s statutory definition of “take.” The Legislature wrote that definition in relation to endangered and threatened species, including conduct such as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting them.

DLNR now proposes to apply “take,” “harm,” and “harass” concepts more broadly to indigenous wildlife, including species that are not designated threatened or endangered.

DLNR cites HRS §195D-3 as authority. That statute gives DLNR broad conservation authority, including authority concerning the taking and treatment of species considered in need of conservation.

That creates an important statutory tension:

If the Legislature expressly defined “take” in §195D-2 in relation to endangered and threatened species, does §195D-3 authorize DLNR to extend that same specialized legal framework to all indigenous wildlife through administrative rulemaking?

This is a major expansion of the potential reach of wildlife law — not merely a technical wording change.

Expanding these concepts to many more species potentially expands:

• Who can be regulated,

• Where wildlife liability can arise,

• What ordinary activities may be questioned,

• How much enforcement discretion DLNR possesses.

Administrative agencies have rulemaking authority, but that authority must remain within the powers granted by the Legislature. Hawaiʻi law specifically provides for rules to be invalidated when they exceed statutory authority.

WHY “CAUSATION” MATTERS

Once wildlife law reaches indirect effects, one question becomes critical:

Did this person's conduct actually cause the wildlife harm?

That is causation.  Being somewhere in a chain of events is not automatically the same as legally causing everything that happens afterward.

Several legal concepts establish important boundaries:

Actual injury:  Was wildlife actually injured or killed, rather than merely exposed to a possible risk?

Causation:  Did the person's conduct actually cause what happened?

Foreseeability:  Was that particular result something a reasonable person could have anticipated?

Proximate cause:  Is the connection close enough that the law should hold that person responsible, rather than tracing responsibility indefinitely backward through increasingly remote events?

Mental State:  Did the person intend the result, knowingly create the risk, act without reasonable care — or was the event simply accidental?

These are not obscure legal technicalities. They are safeguards that separate an unfortunate event from legal liability.

THE U.S. SUPREME COURT RECOGNIZED THE IMPORTANCE OF THESE LIMITS

In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the U.S. Supreme Court upheld an interpretation of the federal Endangered Species Act under which some indirect conduct could constitute wildlife “harm.”

For example, significant habitat modification could qualify where it actually kills or injures protected wildlife.  But indirect did not mean unlimited.

The decision preserved important requirements involving actual injury and legal causation, and Justice O’Connor specifically emphasized principles of proximate causation and foreseeability. The full HAA Public Guide provides the case and underlying federal materials.

The principle is straightforward:

Indirect wildlife harm can be illegal. But legal responsibility cannot extend forever through a chain of events.

That distinction becomes especially important when “take,” “harm,” and “harass” are expanded to many more wildlife species.

WHAT COULD THIS MEAN IN ORDINARY LIFE?

The following examples do not mean every situation would automatically become a wildlife violation.

That is exactly the problem. The proposed rule needs to clearly tell the public where that boundary is.

Example 1 - Your Dog Gets Out

Someone accidentally leaves a gate open.

Dog escapes
↓
Dog enters an area with indigenous birds
↓
Birds flee or alter their behavior

Did the owner “harass” wildlife?  Now imagine the dog chases and injures a native bird.

Has the owner committed a wildlife “take”?  What must DLNR prove?

Intent? Negligence? Actual injury? Foreseeability? Causation?

At what point does ordinary pet ownership become wildlife liability?

Example 2 - You Are Driving Normally

You are driving legally and within the speed limit.  An indigenous bird that is not threatened or endangered suddenly enters the roadway.

You cannot avoid it and the bird is killed.

Under the proposed expansion of “take” to indigenous wildlife:  Has an unavoidable accident become a wildlife “take”?  If not, what protects the driver?

Must DLNR prove negligence?  Foreseeability?  Intent?  Something else?

People should know the answer before the rule is enforced.  If a completely unavoidable accident is not intended to be a violation, the rule should make that boundary clear. 

Example 3 - You Maintain Your Property

A homeowner:

• trims vegetation;

• removes a tree;

• changes drainage;

• installs lighting;

• maintains fencing;

• or otherwise uses the property normally.

Wildlife behavior or habitat changes and later, indigenous wildlife is affected.

Where does ordinary property use end and wildlife “harm” or “harass” begin?

How direct must the connection be?  How foreseeable must the result have been?  What actual injury must DLNR establish?  

These questions matter to people far beyond animal advocacy.

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Example 4 - NOW CONSIDER A COMMUNITY CAT

Community cats provide another clear example.

Person feeds cat
↓
Cat remains in area
↓
Cat may roam
↓
Cat may encounter wildlife
↓
Cat may hunt
↓
Wildlife may be injured

That chain describes a possible biological sequence.

But it does not automatically answer the legal question: Did the person who put down the food legally cause the wildlife injury?  

Feeding a cat is not itself bird predation.  HAA's prior review has not identified a reported federal case establishing that merely feeding a free-roaming cat, without evidence connecting that conduct to legally prohibited wildlife injury or death, itself constitutes take under the ESA or MBTA.

That does not mean wildlife injury can never create liability.

It means:  actual harm, evidence, causation, foreseeability, and the applicable law matter.

WHY CATS ARE ALSO A POPULATION-MANAGEMENT ISSUE

The proposed rules could also affect feeding, trapping, sterilization, veterinary treatment, monitoring, and existing managed colonies.

And one fact is especially important:  Stopping food does not stop reproduction.

A feeding restriction does not sterilize a single cat.

It does not stop:

• Unsterilized animals from reproducing;

• Pet abandonment;

• Lost animals entering the population;

• New cats moving into an area;

• Kittens from being born.

Regular caretakers also help identify cats, detect newcomers, trap animals for sterilization, monitor health, and track populations.

Food availability can influence survival and carrying capacity over time. But food deprivation is not a substitute for sterilization, abandonment prevention, adoption or removal where appropriate, monitoring, and source control.  

If the objective is fewer cats, policy must address the sources of new cats — not simply the food bowl.

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FIVE QUESTIONS DLNR SHOULD ANSWER

1. What statute specifically authorizes this expansion of “take,” “harm,” and “harass” to all indigenous wildlife?

2. What must DLNR actually prove before an indirect activity becomes wildlife “harm” or “take”?

3. What prevents ordinary lawful activities from becoming violations through remote or speculative chains of causation?

4. What role do actual injury, causation, intent, negligence, foreseeability, and proximate cause play — and what must DLNR prove before issuing a citation?

5. What protections will preserve ordinary pet ownership, lawful property use, and legitimate humane animal-management activities such as trapping, sterilization and veterinary care?

WHAT HAA IS ASKING FOR

Hawaiʻi Animal Advocacy is not asking DLNR to weaken wildlife protection.

We are asking DLNR to establish:

Clear statutory authority
for any major expansion of wildlife liability.

Clear definitions
of “take,” “harm,” and “harass.”

Clear causation standards
so people understand where responsibility begins and ends.

Protection for ordinary lawful activity
unless legally sufficient wildlife harm can actually be established.

Protection for humane animal management
including trapping, sterilization, veterinary treatment, monitoring and approved population-management programs.

Site- and species-specific wildlife decisions
based on actual limiting factors and measurable conservation outcomes.

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THE BOTTOM LINE

This proposal is bigger than cats.  Cats may be one important example, but expanded wildlife-law authority could potentially affect:

• your dog,

• your car,

• your property,

• your farm,

• your animals,

• your recreation,

• and other ordinary parts of daily life.

That does not mean every interaction with wildlife becomes illegal.

It means Hawaiʻi residents deserve clear answers before the government dramatically expands the legal concepts that determine when those interactions become violations.

“If ordinary people cannot tell when ordinary conduct becomes a wildlife violation, the rule is not clear enough for the extraordinary enforcement power it creates.”

It is important to protect wildlife, protect humane animal management, protect clear legal boundaries — and to follow the law.

About the Author

Greg Puʻuwai Aloha Baker is the founder of Hawaiʻi Animal Advocacy and holds an MBA and a Certificate in Community Cat Program Management from the University of the Pacific’s Benerd College.

His work focuses on the intersection of humane animal management, conservation policy, public health, and community stewardship. He has been actively involved in community cat management, rescue, and advocacy on Hawaiʻi Island for more than five years, including participation in the trapping, sterilization, and return of more than 100 community cats and volunteer work with high-volume PetFix Spay/Neuter MASH events.

His field experience includes community cat trapping, colony support, direct animal care, public education, and participation in high-volume sterilization efforts. This practical experience informs his emphasis on prevention, measurable population reduction, humane treatment, and accountable management systems.

His policy work developed in response to Hawaiʻi County Bill 51, the county cat-feeding ban measure. In that effort, he helped organize public education and advocacy that contributed to more than 7,600 petition signatures opposing the measure and supporting humane, science-based alternatives.

These efforts led to the founding of Hawaiʻi Animal Advocacy, a Hawaiʻi-based organization advancing evidence-based approaches to animal population management, wildlife protection, public health, and community accountability.

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About Hawaiʻi Animal Advocacy

Hawaiʻi Animal Advocacy is a Hawaiʻi-based organization focused on science-based, humane policy for animal population management.

HAA works at the intersection of animal welfare, conservation, public health, and community stewardship. The organization promotes evidence-based strategies that address the root causes of free-roaming animal populations while supporting protection of native wildlife, ecosystem health, and community well-being.

HAA recognizes that conservation challenges in Hawaiʻi are complex and multifactorial, involving habitat loss, invasive species, disease, watershed degradation, climate pressures, and human activity. Effective management therefore requires integrated, measurable, and publicly accountable approaches rather than single-factor responses.

The organization supports humane population stabilization through targeted sterilization programs, responsible colony management, adoption pathways, public education, and collaborative community engagement. HAA also supports improved scientific rigor, transparent policymaking, and management strategies grounded in verifiable evidence and real-world outcomes.

www.HawaiiAnimalAdvocacy.org

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