* Page Numbers are wrong for online copy.
TABLE OF CONTENTS
DESCRIPTION
PAGE
I.
INTRODUCTION .............................................................................................................. 1
II.
THE ENDANGERED SPECIES ACT ............................................................................... 1
II.
STANDARD OF REVIEW ................................................................................................ 2
III.
STATEMENT OF FACTS ................................................................................................. 3
IV.
ARGUMENT ...................................................................................................................... 3
A.
The Discretion of NMFS to Designate Critical Habitat for Species
Listed as Threatened Before the 1978 Amendments to the ESA Remains
Discretionary with the Agency and is Unchanged by the 1978
Amendments to the ESA ......................................................................................... 4
1.
B.
The Plain Language of the ESA and the Legislative History
Support Only a Discretionary Duty to Designate Critical
Habitat for the HGST .................................................................................. 8
The Critical Habitat Designation for the HGST is Based Upon Both
Economic and Scientific Factors that Remain Valid even if the More
Restrictive 1978 Amendments to the ESA Were Applied to NMFS’
Final Rule .............................................................................................................. 10
1. NMFS’ Final Rule Reflects the Consideration of Economic
and Other Factors, as Mandated by the 1978 Amendments ..................... 12
2. NMFS’ Final Rule Reflects the Consideration of the Best
Scientific Data Available, as Mandated by the 1978
Amendments ............................................................................................ 16
C.
V.
The Designation of Critical Habitat for a Threatened Species is a
Discretionary Function of NMFS and the Final Rule Promulgated by
NMFS is a Decision for which Appropriate Deference Should be
Accorded. .............................................................................................................. 19
CONCLUSION ................................................................................................................. 20
1
TABLE OF AUTHORITIES
(omitted)
2
I.
INTRODUCTION
Defendant, National Marine Fisheries Service (“NMFS”), respectfully moves this Court
for summary judgment on all the claims in Plaintiffs’ Complaint. Plaintiffs challenge the Final
Rule, 100 Fed. Reg. 60,000 (April 1, 2003) (“Final Rule”) published by NMFS jointly with the
Fish and Wildlife Service (“FWS”), partially granting and partially denying Plaintiffs’ petition to
designate critical habitat for the Hawaii Green Sea Turtle, Chelonia mydas (“HGST”). Plaintiffs
also challenge the scientific, economic, and factual basis for the Final Rule, alleging that NMFS’
critical habitat designation (“CHD”) for the HGST was both arbitrary and capricious.
As this motion demonstrates, Plaintiffs’ claims are based on the erroneous view that
critical habitat for the HGST should be made without reference to the economic impact of such
designation. Moreover, Plaintiffs mischaracterize NMFS’ Final Rule as arbitrary and capricious
whereas a review of all available scientific and commercial data in the administrative record
demonstrates that NMFS’ determinations are well reasoned and rationally based. Plaintiffs are
simply unsatisfied with any CHD that does not encompass the full range of the HGST – the
entirety of the Hawaii archipelago. Here, the Final Rule represents the most balanced response
to the petition to designate critical habitat filed by the Plaintiffs on April 1, 2002. Accordingly,
this Court should affirm NMFS’ determinations and grant its motion for summary judgment.
II.
THE ENDANGERED SPECIES ACT
HGST are considered fish or wildlife, of the reptile class, and are within the purview of
protections offered under the Endangered Species Act (“ESA”). 16 U.S.C. §§ 1532 (1996); 50
C.F.R. § 10.12 (2001) (defining pertinent terms of the ESA). The HGST was declared a
3
“threatened species” on July 28, 1978.1 50 C.F.R. § 17.11 (2001). Although listing a species as
threatened or endangered provides substantial protections under the ESA,2 Congress has
mandated the designation of critical habitat in certain circumstances. See 16 U.S.C. § 1532(a)(3)
(1996); 50 C.F.R. § 414.12(a) (2001). Once an area is designated as critical habitat, section 7 of
the ESA requires that federal agencies or activities with federal involvement consult with NMFS
to “insure that any action” does not jeopardize the species or destroy/adversely modify the
critical habitat. 16 U.S.C. § 1536(a)(2) (1996). Although there was no mandatory duty to
designate critical habitat for the HGST in this case,3 and despite the fact that the HGST
population is rising, Plaintiffs filed a petition under the Administrative Procedures Act (“APA”)
and ESA to force designation of critical habitat for the HGST. See 5 U.S.C. §§ 553, 701-06
(1995); 16 U.S.C. § 1540(g) (1995). There are no other cases, in any circuit, wherein NMFS has
been petitioned to list or designate critical habitat for a species whose population is rising.
II.
STANDARD OF REVIEW
The Final Rule challenged in this action is a final agency action subject to judicial review
under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. When reviewing challenges to
an agency action taken under Section 7 of the ESA, a reviewing court applies the “arbitrary and
capricious standard” of review from the APA. Greenpeace Action v. Franklin, 14 F.3d 1324,
1336 (9th Cir. 1992); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 981-82 (9th
Cir. 1985). This review is limited to a review of the administrative record before the agency at
1
Species that are threatened enjoy the same protections as endangered species, with only one
administrative exception. See 50 C.F.R. § 17.31 (2001) (stating that “all of the provisions in § 17.21 shall
apply to threatened wildlife, except § 17.21(c)(5)”).
2
See 50 C.F.R. § 17.21 (1998) (enumerating prohibited acts with regard to threatened or endangered
species).
4
the time of decision-making. Camp v. Pitts, 411 U.S. 138, 141-42 (1973); National Audubon
Society v. U.S. Forest Service, 4 F.3d 832, 841 (9th Cir. 1993). The court may not engage in de
novo review. National Organization for Women v. Social Security Admin., 736 F.2d 727, 734
(D.C. Cir. 1984). If this record does not support the agency action, if the agency has not
considered all the relevant factors, or if the reviewing court simply cannot evaluate the
challenged agency action on the basis of the record, the proper course is to remand the matter to
the agency for the additional investigation or explanation. Florida Power & Light v. Lorian, 470
U.S. 729, 744 (1985); UOP v. U.S., 99 F.3d 344, 350 (9th Cir. 1996).
Review under the arbitrary and capricious standard is to be “searching and careful” but
“narrow,” and a court is not to substitute its judgment for that of the agency. Marsh v. Oregon
National Resources Council, 490 U.S. 360, 378 (1989). This is especially appropriate where, as
here, the challenged decision implicates substantial agency expertise. Mt. Graham Red Squirrel
v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993) (citing U.S. v. Alpine Land and Reservoir Co., 887
F.2d 207, 213 (9th Cir. 1989)). The court is to “defer to the agency’s interpretation of equivocal
evidence, so long as it is reasonable.” Central Arizona Water Con’s Dist. v. U.S. EPA, 990 F.2d
1531, 1539 (9th Cir. 1993).
III.
STATEMENT OF FACTS
A Concise Statement of Material Facts has been filed simultaneously with this
Memorandum in Support of Motion for Summary Judgment.
IV.
ARGUMENT
Plaintiffs challenge NMFS’ Final Rule designating limited critical habitat for the HGST
within the Hawaiian archipelago. An examination of the Plaintiffs’ arguments reveals bare
3
See infra A-A1.
5
dissatisfaction with CHD that does not encompass the entirety of the HGST range – 4,508 square
miles of Hawaiian pelagic waters. Specifically, the CHD urged by the Plaintiffs ignores both the
significant economic impacts of such an expansive CHD and seeks to establish critical habitat
where there is incomplete scientific evidence supporting such designation. Plaintiffs have
offered nothing but empty arguments about the insufficiency of the CHD promulgated by NMFS,
wholly ignoring the fact that the HGST population has been recovering, even prior to
designation.
A.
The Discretion of NMFS to Designate Critical Habitat for Species Listed as
Threatened Before the 1978 Amendments to the ESA Remains Discretionary
with the Agency and is Unchanged by the 1978 Amendments to the ESA.
The HGST was listed as a threatened species on July 28, 1978. 50 CFR § 17.11 (1998).
Threatened species enjoy a panoply of protections enumerated in the ESA under 16 U.S.C. 1538
(1996). At the time the HGST was listed, all critical habitat designations were at the sole
discretion of the Secretary of Commerce. Further, Congress provided no clear mandate,
guideline, or restriction on CHD, and, in fact, did not define critical habitat in the ESA itself. On
November 10, 1978, the ESA was amended, in part, clarifying the critical habitat provisions.4 Of
particular importance, the amendments imposed an affirmative duty upon NMFS to designate
critical habitat concurrently with listing a species as either threatened or endangered. 16 U.S.C.
§ 1533(a)(3)(A) (1996) (stating that the Secretary “shall concurrently with making a [listing]
determination . . . designate any habitat of such species which is then considered to be critical
habitat”). With regard to species, such as the HGST, which had been listed prior to the 1978
amendments, the ESA clearly states:
4
Endangered Species Act Amendments of 1978, Pub. L. No. 95-632 § 3(a), (e)-(m), 92 Stat. 3751,
3752-59 (Nov. 10, 1978).
6
[c]ritical habitat may be established for those species now listed as
threatened or endangered species for which no critical habitat has
heretofore been established
16 U.S.C. § 1532 (5)(B) (1996) (emphasis added).
Congress clearly decided that the affirmative duty to designate critical habitat concurrently with
all listings after the 1978 amendments was not extended to species listed prior to the
amendments. See Fund for Animals v. Babbit, 903 F. Supp 96, 104 (D.D.C. 1995) amended by
967 F. Supp. 6 (D.D.C. 1997) (stating that “Congress excused from this [mandatory designation
of critical habitat] those species that were already listed at the time the Act was amended”). In
fact, the statutory treatment of species listed prior to the 1978 amendments may have been a
specific congressional reaction to a proposed expansive CHD for the grizzly bear, which was
being discussed around the same time as the amendments. See Proposed Designation of Critical
Habitat, 41 Fed. Reg. 48,758 (1976) (proposing a critical habitat of approximately 10 million
acres for the grizzly bear); see also S. Rep No. 874, 95th Cong., 2nd Sess. 10 (1978) (discussing
the unnecessarily large area proposed as critical habitat for the grizzly bear). Anecdotally, the
proposed CHD for the grizzly bear was withdrawn in 1979 and has never been established. See
Withdrawal of Proposals, 44 Fed. Reg. 12,382 (1979).
Attempts to challenge the disparate statutory treatment of species listed before and after
the 1978 amendments have been rebuffed by the courts. In Fund for Animals v. Babbit the
United States District Court for the District of Columbia reviewed the FWS’ decision to deny a
petition seeking to designate critical habitat for the threatened grizzly bear. 903 F. Supp at 103
(D.D.C. 1995). The plaintiffs (petitioners) argued that the grizzly bear, listed prior to the 1978
amendments, should be treated, for critical habitat purposes, the same as species listed after the
1978 amendments. Id. at 115. The plaintiffs further argued that because Congress had
7
recognized the importance of critical habitat in the 1978 amendments, the affirmative duty to
designate critical habitat should be extended to species listed prior to 1978. Id. The court
rejected the argument and held that “the plain language of the ESA renders the decision to
designate critical habitat a discretionary decision” with regard to species listed prior to the 1978
amendments. Id.
Similarly in Enos v. Marsh this Court refused to compel the FWS to designate critical
habitat where there was no affirmative duty to do so. 616 F. Supp 32, 61 (D. Haw. 1984). In
Enos, a group of Hawaii coastal residents sought to enjoin the construction of a deep draft harbor
by the U.S. Army. Id. at 35. The plaintiff residents argued that the endangered `akoko plant5
was protected under the ESA and that construction of the harbor would jeopardize the species in
violation of the statute. Id. at 59-60. The plaintiff residents alleged that FWS had an “absolute
duty to designate critical habitat” and that the U.S. Army Corps of Engineers “violated the ESA
by continuing with the [construction] project before a critical habitat was designated.” Id. at 58.
The court refused to compel FWS to designate critical habitat for the `akoko because the `akoko
was listed prior to the 1982 amendments to the ESA, which required that a CHD be made within
one year. Id. at 61-62. Judge Fong analogized the `akoko to species listed prior to the 1978
amendments, highlighting the fact that Congress had created a pattern of exempting certain
species from the requirements of new amendments to the ESA. Id. at 60-62. In the case of the
`akoko, because its critical habitat was not determinable due to a lack of scientific data before the
1982 amendments, such species were excused from the requirements of the 1982 amendments
5
The `akoko plant was not formally listed as an endangered species prior to 1978, but the plant was
included on a 1976 list proposed for listing as endangered. Enos, 616 F. Supp. at 54. When the `akoko
was discovered in July 1976, in the area of the proposed construction, it was treated thereafter as an
endangered species, although not formally listed until August 24, 1982. Id. at 54-57.
8
which required designation of critical habitat within one year despite a lack of scientific data. Id.
at 61.
Thus, if the `akoko had been listed after the 1982 amendments to the ESA, FWS would
have had an affirmative duty to designate critical habitat. But, similar to the HGST and other
species listed prior to the 1978 amendments, the `akoko was not “grand fathered” under the
requirements of the new amendments. Id. at 61. Judge Fong specifically highlighted the
disparate treatment of species listed before and after the 1978 amendments and, in fact, used it as
the basis for his decision to allow disparate treatment of species listed before and after the 1982
amendments. Both Fund for Animals and Enos confirm what is already clear from the plain
language of the statute. NMFS is not required to designate critical habitat for the HGST, but
may do so at its discretion.
This case is likewise not controlled by precedent in the Ninth Circuit requiring
designation of critical habitat for threatened or endangered species, despite the fact that critical
habitat may be beneficial to the species and reflect the goals of the ESA. See Natural Resources
Defense Council v. U.S. Dep’t. of the Interior, 113 F.3d 1121, 1127 (9th Cir. 1997) (holding that
FWS failed to discharge its statutory obligation to designate critical habitat for the California
gnatcatcher); see also Center for Biological Diversity v. Norton, 254 F.3d 833 (9th Cir. 2001)
(finding that the Secretary of the Interior failed to comply with certain mandates of the ESA
related to listing and critical habitat determinations). This Court does not risk reversal by
granting NMFS’ motion for summary judgment because NMFS is not bound by any of the
pertinent mandates enumerated in the 1978 amendments. NMFS has not failed to discharge a
statutory obligation because no obligation existed.
9
1.
The Plain Language of the ESA and the Legislative History Support
Only a Discretionary Duty to Designate Critical Habitat for the
HGST.
Had Congress not excused pre-1978 Amendment-listed species (“pre-1978 listed
species”) from the requirements of the 1978 amendments, the language of the statute would be
rendered nonsensical. Specifically, the 1978 amendments require that critical habitat be
designated “concurrently” with the listing of species as either endangered or threatened. 16
U.S.C. 1532(a)(3)(A) (1996); ESA Section 4(a)(3)(A). Applying the “concurrently” language to
species that had already been listed would have violated the fundamental rules of statutory
construction and could have rendered the statute fatally ambiguous. See e.g., U.S. v. RoblesRodriguez, 281 F.3d 900, 904 (9th Cir. 2001) (stating that “one provision of a statute should not
be interpreted in a manner that renders other sections of the same statute inconsistent,
meaningless, or superfluous”); U.S. v. Leyva, 282 F.3d 623, 625 (9th Cir. 2002) (holding that
under the rules of statutory construction, ‘the plain meaning of the statute controls, and courts
will look no further, unless its application leads to unreasonable or impractical results’) (citation
omitted). Congress did not, however, leave the question of CHD for pre-1978 listed species
unanswered. Nor did Congress leave CHD for pre-1978 listed species to be resolved by
reference to the new statutory objectives. In fact, Congress specifically stated, as mentioned
above, that “[c]ritical habitat may be established for those species now listed.” 16 U.S.C. § 1532
(5)(B) (1996) (emphasis added). The plain language of the statute is abundantly clear and this
Court should not disturb the deliberate act of Congress to excuse pre-1978 listed species from the
1978 amendments. It is well settled that courts should defer to the plain meaning of a statute
where it is not otherwise ambiguous or contradictory. See Adams Fruit Co., Inc. v. Barrett, 494
U.S. 638, 645 (1990) (unanimously rejecting argument that “is inconsistent with basic principles
10
of statutory construction that require giving effect to the meaning and placement of the words
chosen by Congress”); Doyan, Ltd. v. Andrus, 569 F.2d 491, 498 (9th Cir. 1978) (stating that
[s]ubstituting different words or phrases for otherwise clear ones in not statutory construction of
vague and ambiguous language [the proper role of the judiciary in interpreting and construing
statutes]).
Despite the fact that critical habitat was not made mandatory for the HGST and other pre1978 listed species, Congress did not ignore the plight of the HGST during the passage of the
1978 amendments. In fact, the congressional record is replete with references to the Green Sea
Turtle species, including a specific reference to the listing of the Green Sea Turtle:
Mr. Forsythe: But what is your backlog of species to be studied for
listing?
Mr. Gehringer: At the present time here are 14 marine species on the
endangered list. We are presently proposing, with Interior, three additional
sea turtles, the loggerhead, green, and the Pacific Ridley. We expect this
to be completed in March
*
*
*
Mr. Leggett: How many sea animals do we have pending?
Mr. Gehringer: The only ones we have pending are one fish, Caribbean
monk seal, and three turtles, which are in process, and will be processed
very shortly.
Endangered Species Act – Part I: Hearings Before the Subcommittee on Fisheries and Wildlife
Conservation and the Environment of the Committee on Merchant Marine Fisheries, 95th Cong.
25-26 (May. 24, 1978) (statement of Jack M. Gehringer, Acting Deputy Assistant Administrator
for Fisheries, NOAA).
The necessity of adding the Green Sea Turtle to the endangered and/or threatened species list
was again highlighted in testimony to Congress:
I would like to make special comment on the sea turtles. This is a very
shocking article [entered into the record] titled “The Shame of Escobilla,”
which deals with the killing of these species . . . . Yet so far the United
States has not listed these turtles or, in fact, it only has two turtles listed . .
. we haven’t even gotten ours on the threatened list.
11
*
*
*
A leading turtle expert, Richard Felger, states that the Kemp’s Ridley will
be extinct this year, the Pacific Ridley will be extinct in 8 years or less, the
green in 3 years or less unless the present trends are reversed.
Amending the Endangered Species Act of 1973: Hearings Before the Subcommittee on Resource
Protection of the Committee on Environment and Public Works, 95th Cong. 218-19 (Apr. 14,
1978) (statement of Christine Stevens, Secretary, Society for Animal Protective Legislation).
Plaintiffs argue that similar to Fund for Animals, species listed as threatened or endangered prior
to the 1978 amendments should be treated the same as species listed after the amendments. The
argument, however, ignores that fact that the 1978 amendments were passed with substantial
testimony regarding both turtles and the grizzly bear. Although the legislative record does not
address the reasons behind excusing pre-1978 listed species from the requirements of the
amendments, the record does confirm that Congress was keenly aware of the plight of the Green
Sea Turtle and similarly situated species. In any case, NMFS has not ignored the concerns of
Plaintiffs and despite the fact that NMFS is not required to designate critical habitat for the
HGST pursuant to the 1978 amendments, the agency has designated critical habitat
notwithstanding.
B.
The Critical Habitat Designation for the HGST is Based Upon Both
Economic and Scientific Factors that Remain Valid Even if the More
Restrictive 1978 Amendments to the ESA Were Applied to NMFS’ Final
Rule
The Final Rule promulgated by NMFS reflects its thorough consideration of the many
factors bearing upon a CHD. The Plaintiffs attack various portions of the Final Rule, but have
utterly failed to prove that NMFS acted arbitrarily or capriciously in its determinations. To the
contrary, NMFS has: 1) designated critical habitat for the HGST in the absence of a specific
12
statutory mandate; 2) considered the factors required under the more restrictive 1978
amendments, which do not even apply to CHD for the HGST; and 3) utilized a multitude of the
best available scientific and commercial data to reach its determinations. Assuming that NMFS
was required to designate critical habitat for the HGST, the agency has done so in compliance
with the spirit6 and letter of the ESA.
Under the more restrictive 1978 amendments, the Secretary “shall” designate critical
habitat “to the maximum extent prudent or determinable.” 16 U.S.C. § 1533(a)(3). The ESA,
however, leaves the Secretary to define the “prudent” and “determinable” for purposes of
designating critical habitat. See TVA v. Hill, 437 U.S. 153, 172 (1978). In lieu of defining
“prudent,” the ESA requires the Secretary to make a designation decision “on the basis of the
best scientific data available and after taking into consideration the economic impact, and any
other relevant impact, of specifying any particular area as critical habitat.” 16 U.S.C. §
1533(b)(2). Several sections of the ESA are instructive when considering what area should be
designated for critical habitat purposes. Preliminarily, critical habitat is defined under the ESA
as:
(i) the specific areas within the geographic area occupied by the species, at
the time it is listed . . . , on which are found physical or biological features
(I) essential to the conservation of the species and (II) which may require
special management considerations or protection; and
(ii) specific areas outside the geographic area occupied by the species at
the time it is listed . . . upon a determination of the Secretary that such
areas are essential for the conservation of the species.
16 U.S.C. § 1532(5)(A).
Thus, critical habitat need only include areas “essential to the conservation of the listed species.”
and does not require a designation throughout a species’ range. Id. (emphasis added). In fact,
6
See generally 16 U.S.C. § 1531 (1996) (highlighting the purposes and policies behind enactment of the ESA and
the provisions therein).
13
Congress specifically prohibited CHD that would encompass the entire range of a species. The
ESA Section 3 states:
[e]xcept in those circumstances determined by the Secretary, critical
habitat shall not include the entire geographic area which [sic] can be
occupied by threatened or endangered species.
16 U.S.C. § 1532(5)(C) (1996) (emphasis added).
1.
NMFS’ Final Rule Reflects the Consideration of Economic and Other
Factors, as Mandated by the 1978 Amendments
NMFS’ decision to partially grant and partially deny Plaintiffs’ petition to designate
critical habitat is supported both by the plain language of the statute, supra, and also by the
congressional record. In the process of clarifying the critical habitat provisions of the ESA
through the 1978 amendments, the record reflects an abundance of testimony against sweeping
CHD:
Mr. Cutler: Oh, I think there will be problems when it comes to drawing
the boundaries for the critical habitat. For example, we’ve got a question
right now with the Fish and Wildlife Service over what is the so-called
critical habitat for the grizzly bear; does it have to be the entire Northern
Rockies, or an it be something smaller, and what does that mean as far as
timber management is concerned.
Endangered Species Act – Part I: Hearings Before the Subcommittee on Fisheries and Wildlife
Conservation and the Environment of the Committee on Merchant Marine Fisheries, 95th Cong.
434 (June 6, 1978) (statement of M. Rupert Cutler, Assistant Secretary for Conservation,
Research, ad Education).
Then Congressmen Trent Lott also commented on the difficulty of establishing necessary
infrastructure in large critical habitat areas:
Mr. Lott: I was a member of this committee when the [E]ndangered
Species Act was first passed. I wish I would have known then what I
know now. I would have made an effort to prevent a lot of the problems .
. . The upshot is that those 40 birds will cost the American people
probably as much as $9 million to buy the land that is supposed to be
critical habitat and try to buy the land around the interchange so it can be
14
built . . . We are talking about 6,000 acres. At one point, it included
100,000 acres to protect the 40 birds.
Endangered Species Act – Part I: Hearings Before the Subcommittee on Fisheries and Wildlife
Conservation and the Environment of the Committee on Merchant Marine Fisheries, 95th Cong.
25-26 (May. 24, 1978) (statement of Hon. Trent Lott, A Representative in Congress from the
State of Mississippi).
The legislative record confirms the importance of the balancing approach reflected in Section
4(b)(2) of the ESA (requiring economic and other factors to be considered in an initial CHD). In
this case, Plaintiffs challenge sections three and seven of the Final Rule, which state:
3) for areas with high levels of present or future economic development,
the adverse economic consequences outweigh the benefits to the species
*
*
*
7) CH designation in some highly populated and developed areas should
be delayed in order to avoid a backlash of public opinion, to maximize
public education benefits of future designation, and to minimize economic
impacts
Hawai`i Green Sea Turtle Critical Habitat Designation, 100 Fed. Reg. 60,000, at General
Rationale (“G.R.”) 3, 7 (April 1, 2003) (hereinafter “HGST/CH Rule”)
The critical habitat urged by the Plaintiffs ignores the balancing approach adopted by NMFS,
which is so clearly evidenced by the plain language of Section 4 and the legislative history of the
ESA.
Sections 3 and 7 of the Final Rule are rationally based upon the economic impact and
public sentiment toward critical habitat in Hawaii. In this case and in prior CHDs, NMFS has
made a concerted effort to protect listed species while designating critical habitat in areas with
the least amount of economic impact. See e.g. Jan TenBruggencate, Snail Habitat Study Sees
Little Economic Impact, Honolulu Advertiser, March 3, 2002, [page missing] (describing the
anticipated low economic impact of several CHDs for the Newcomb’s snail); see also Christie
Wilson, Maui Habitat Plan Revised to Address Concerns, Honolulu Advertiser, April 4, 2002, at
15
B6 (describing the designation of 128,294 acres of critical habitat in areas that are areas mostly
unsuitable for development and that will have the least amount of economic impact). Further,
delaying CHD, pursuant to Section 3 of the Final Rule, in “highly populated and developed
areas” is entirely reasonable in light of the fact that both NMFS and FWS have met with
significant criticism over CHD for other species. See e.g. Jan TenBruggencate, Habitat Plan
Draws Protests, Honolulu Advertiser, April 2, 2002, at B1, B5 (describing outrage at proposal to
designate 100,000 acres on the island of Kaua`i as critical habitat for certain plant species and
further community concerns over proposal to designate 4,193 acres in a Kaua`i tourist area as
habitat for certain endangered cave spiders); see also Gary T. Kubota, Federal Habitat Proposal
Gives Landowners Pause, Honolulu Star-Bulletin, April 4, 2002 (describing aversion of Maui
landowners to an expanded CHD in areas that are not conservation areas or reserves).
The economic impact of critical habitat is beginning to take an even more prominent
place in CHDs nationwide. In fact, the current administration, including NMFS and FWS, has
urged the roll back of previously designated critical habitat because of adverse economic impact
on urban and rural development. See Greg Winter, U.S. Acts to Shrink Endangered Species
Habitats, New York Times, March, 20, 2002, at A18 (describing a governmental policy to urge
federal courts to undo expansive critical habitat designations). The newly prominent
consideration of economic impact has, likewise, been enforced with greater frequency in court.
See New Mexico Cattle Growers Ass’n v. U.S. Fish and Wildlife Serv., 248 F.3d 1277 (10th Cir.
2001) (“NMCGA”). In NMCGA, members of New Mexico’s agricultural industry challenged
FWS’ designation of 599 miles of stream and riverbed critical habitat for the Southwestern
Willow Flycatcher. Id. at 1279-80. The court set aside the CHD for the Flycatcher, holding that
all economic impacts must be considered, despite whether such impacts may arise vicariously
16
from listing, rather than from CHD itself. NMCGA represents the growing concern of federal
courts over the economic impact of CHD, as identified by Winter, supra. See also Bennett v.
Spear, 520 U.S. 154, 173-74 (1997) (permitting review under the citizen-suit provisions of the
ESA for an alleged failure by the Secretary to consider the economic impacts of critical habitat
designation for two endangered fish species).
NMFS “may exclude” certain areas from the CHD if it is determined that the benefits of
such an exclusion are outweighed by the benefits of critical habitat. 16 U.S.C. § 1533(b)(2)
(1996). In fact, the Supreme Court of the United States has found that failure by the Secretary to
not exercise the option to exclude certain areas from critical habitat may be tantamount to
“maladministration” of the ESA. Spear, 520 U.S. at 172-73. In Bennett v. Spear, ranch
operators with competing economic interests in the Klamath Irrigation Project sought standing
for judicial review of the critical habitat determination for two types of endangered suckerfish.
Id. at 157-59. The Court held that where the Secretary may not have properly considered the
economic impacts of a CHD, the decision is reviewable under 16 U.S.C. § 1540(g)(1)(C). Id. at
172. Thus, NMFS had an affirmative duty to consider the economic impacts of CHD for the
HGST and the corollary discretion to exclude particular areas where appropriate. See Douglas
County v. Babbit, 48 F.3d 1495, 1503 (9th Cir. 1995) (recognizing the “special guideline”
allowing the Secretary to exclude areas from CHD). Instructed by the mandates of NMCGA and
Spear, NMFS’ decision to partially grant and partially deny Plaintiffs’ petition to designate
critical habitat for the HGST is fundamentally tied to the economic impacts such designation
would have in Hawaii.7
7
In this case, NMFS has taken efforts to avoid the quagmire of linking economic impact to the jeopardy
and adverse modification standards. See e.g., NMCGA, 248 F.3d at 1283 (addressing, in dicta, the
problem of the coterminous definitions of “adverse modification” and “jeopardy” and how these
regulatory definitions may inform the economic impact analysis). Although NMFS does contend that
17
The economic impact of CHD is likewise linked to the actual size of the CHD area. The
size of the critical habitat designation urged by the Plaintiffs in this case is without precedent. A
CHD for the Green Sea Turtle was previously made in the U.S. Territory of Puerto Rico and has
never encompassed an area as large as that urged by the Plaintiffs. For example, the critical
habitat designation in Puerto Rico covers only “the mean high water line seaward to 3 nautical
miles” surrounding the island of Culebra and its Keys. 50 C.F.R. § 226.208 (2000). Although
the Green Sea Turtle is found throughout Puerto Rico, the CHD only encompasses the area of
Culebra and its Keys, approximately 7000 acres. Moreover, the CHD for the Green Sea Turtle
does not include the main island of Puerto Rico, or other islands in the Puerto Rico archipelago,
including the well-known U.S. Navy training island, Vieques. The limited CHD for the Green
Sea Turtle in Puerto Rico is comparable to CHDs for other species of turtles in different areas of
the Caribbean. See 50 C.F.R. § 226.207 (2000) (designating critical habitat for the Leatherback
Turtle in a small area of the U.S. Virgin Islands); 50 C.F.R. § 226.209 (2000) (designating
critical habitat for the Hawksbill Turtle in the waters surrounding two small islands in the U.S.
Territory of Puerto Rico). For comparison purposes, the CHD urged by the Plaintiffs would be
approximately 316 times that of the largest critical habitat designation for a turtle anywhere in
the United States.
1.
NMFS’ Final Rule Reflects the Consideration of the Best Scientific
Data Available, as Mandated by the 1978 Amendments
There is a difference of opinion as to the best modus operandi to approach the
designation of critical habitat for the HGST, but the Final Rule represents the best designation
based upon the science in existence at the time of designation. Under Section 4 of the ESA,
“the adverse modification of critical habitat ‘is nearly identical’ to the jeopardy standard,” the Final Rule
at issue in this case does not tie the economic impact of CHD to the adverse modification standard of 50
18
NMFS is charged with putting forth a recovery plan for listed species. 16 U.S.C. § 1533(f)(1)
(1996). In 1997, NMFS completed the recovery plan for the HGST, which was produced with a
view toward “conservation and survival,” as is required by the language of the statute. Id.; see
National Marine Fisheries Service, U.S. Dep’t of Commerce & U.S. Fish and Wildlife Service,
U.S. Dep’t of the Interior, Recovery Plan for U.S. Pacific Populations of the Green Sea Turtle
(“Recovery Plan”). George Balasz, the leading expert in Pacific turtle populations, as well as
eleven other highly regarded scientists, produced the recovery plan, which is relied on by both
NMFS and the Plaintiffs. Id. at iii (indicating members of the Pacific Sea Turtle Recovery Team
and authors of the recovery plan itself). The Plaintiffs do not dispute the science or reputability
of the recovery plan relied upon by NMFS in this case.
Plaintiffs, however, challenge NMFS’ conclusions in the Final Rule,8 which are based
upon the science of the recovery plan. Specifically:
1) for areas currently with strictly controlled public access or under
federal protection, there is no need [sic] for CH;
2) for area that are already highly degraded, there are no significant benefits to
CH; in particular, there is no proven scientific link between fibropapilloma (FP)
and nearshore water pollution
*
*
*
5) beyond one mile from the shoreline, habitat is not determinable or beneficial
because foraging and resting occurs around coral reefs in nearshore areas; it is not
prudent or determinable to protect migration routes since they are not sufficiently
studied
HGST/CH, 100 Fed. Reg. 60,000, at G.R. 1-2, 5 (April 1, 2003).
C.F.R.402.02 (2000). Cf. Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001).
8
NMFS contends that there is no legal basis for a challenge to Section 10 of the Final Rule, wherein
NMFS has made no special provision for native Hawaiians. See Rice v. Cayetano, 528 U.S. 495 (2000)
(refusing to recognize a special relationship between native Hawaiians and the federal government, thus
invalidating a race-based voting system for elections for offices within the Office of Hawaiian Affairs).
Id. at 527.
19
Contrary to the Plaintiffs assertions that the Final Rule was arbitrary and capricious, Sections 2
and 5 of the Final Rule can be traced to specific findings within the recovery plan. For instance,
NMFS cannot be expected to designate critical habitat in “degraded areas,” where the impact of
environmental contaminants upon the HGST are “unknown” and where fibropapilloma has not
been scientifically linked to contaminants or industry. See Recovery Plan, at 36, 38; see also 16
U.S.C. 1533(a)(3) (requiring CHD only to the maximum extent “prudent and determinable”).
Because degraded areas are often the most economically vital, NMFS would have violated its
duty to balance the relevant economic factors, had the agency outweighed such factors with
inconclusive scientific data. See ESA Section 4(b)(2). Similarly, NMFS did not designate
critical habitat where there is no conclusive benefit to a CHD. In particular, the activities of the
HGST beyond one mile of the shoreline are not known. See Recovery Plan, at 14, 17. Migration
routes of the HGST, in general, are also unknown and thus NMFS was justified in excluding the
“indeterminable” migration routes from the CHD for the HGST. See Recovery Plan, at 13
(stating that ‘[t]he oceanic routes taken the adults on their migration . . . are generally unknown).
It was likewise prudent for NMFS to exclude certain areas from CHD, as was done in
Section 1 of the Final Rule. Specifically, the most important habitat for the HGST – the
Northwest Hawaiian Islands – will be protected without a CHD, in light of the fact that the area
was designated as an ecosystem reserve by executive order. Exec. Order No. 13,178, 65 Fed
Reg. 76,903 (Dec. 7, 2000). The current administration has likewise endorsed the reserve status
of the Northwest Hawaiian Islands and has initiated a plan to protect and monitor the reserve.
See Diane Leone, U.S. Moves to Protect NW Hawaiian Islands, Honolulu Star-Bulletin, March
16, 2002.
20
Lastly, assuming arguendo that the CHD in the Final Rule does not adequately protect the
HGST, NMFS has the statutory authority to “revise such designation.” 16 U.S.C. §
1533(a)(3)(B) (1996). However, such revision should only be undertaken if there is empirical
data that the current rule does not adequately meet the needs of the HGST.
C.
The Designation of Critical Habitat for a Threatened Species is a
Discretionary Function of NMFS and the Final Rule Promulgated by NMFS
is a Decision for which Appropriate Deference Should be Accorded.
Neither the ESA nor the implementing regulations require NMFS to designate critical
habitat for species listed as threatened before the 1978 amendments. In this case, however,
NMFS has designated critical habitat for the HGST throughout a substantial portion of the
Hawaii archipelago.9 See HGST/CH Rule, 100 Fed. Reg. 60,000, at Geographic Description
(April 1, 2003). This court has stated that:
[D]esignation establishes a uniform protection plan prior to [section 7]
consultation. In the absence of such designation of the importance of a species’
environment will be made piecemeal, as individual federal projects arise and
agencies consult with FWS [or NMFS]. . . . Thus, the designation ensures that the
proper attention and focus is provided in determining a recovery plan . . .
designation of critical habitat ‘plays a critical role in identifying those areas in
which a § 7 consultation will be triggered’
Conservation Council for Hawai`i v. Babbit,, 2 F. Supp 2d 1280, 1288 (D. Haw. 1998).
NMFS acknowledges that this Court has found “significant substantive and procedural
protections” that critical habitat designation confers upon a listed species, but the agency is
likewise committed to the balancing approach mandated by the plain language and legislative
history of the ESA. Id. The Final Rule in this case was not a wholesale rejection of Plaintiffs’
petition, but rather, a well-reasoned alternative approach to the competing interests of CHD for
the HGST.
21
The agency action, in this case, is clearly valid under the ESA. In determining whether
NMFS has acted arbitrarily and capriciously, the court should “accord[] a high degree of
deference to an agency’s interpretation of the statutory provisions and regulations it is charged
with administering.” Conservation Council for Hawai`i v. Babbit, 2 F. Supp.2d 1280, 1282 (D.
Haw. 1998) (citing Natural Resources Defense Council v. United States Dep’t of Interior, 113
F.3d 1121, 1124 (9th Cir. 1997)). Here, the Plaintiffs have simply not overcome the “significant
hurdle” necessary to successfully claim that NMFS’ action was arbitrary and capricious. Wind
River Multiple-Use Advocates v. Espy, 835 F. Supp. 1362, 1370 (D. Wyo. 1993).
Although NMFS strongly avers that each part of the Final Rule specifically corresponds
to the scientific and economic data included in the administrative record, if this Court is “unclear
of the grounds the agency asserts to defend its actions” the court should only remand the
administrative record for additional explanation. Bowman Transport., Inc. v. Arkansas-Best
Freight Sys., Inc., 401 U.S. 402, 420 (1974); see also American Bioscience, Inc. v. Thompson,
269 F.3d 1077, 1086 (D.C.C. 2001).
V.
CONCLUSION
For all of the reasons set forth above, NMFS requests that this Court enter summary
judgment in favor of the Defendants on all claims set forth in the Plaintiffs’ Complaint.
DATED:
Honolulu, Hawaii, May 1, 2002.
KRYSTEL CARRINGTON COLBY
United States Attorney
District of Hawaii
By:
____________________________________
NMFS does contend, however, that “there is little or no benefit to [critical habitat] designation in
general because of existing protections for HGST under Sections 7 and 9 of the ESA.” See HGST/CH,
100 Fed. Reg. 60,000, at G.R. 8 (April 1, 2003).
9
22
KRYSTEL CARRINGTON COLBY
Attorney for Defendant,
NATIONAL MARINE FISHERIES SERVICE
23