Conservation Council for Hawai`I v. Babbitt, Civ. 97-00098 ACK.

• Decision Date: 10 August 1998
• Docket Number: No. Civ. 97-00098 ACK.,Civ. 97-00098 ACK.
• Citation: 24 F.Supp.2d 1074
• Parties: CONSERVATION COUNCIL FOR HAWAI`I, et al., Plaintiffs, v. Bruce BABBITT, Secretary of the Interior, et al., Defendants.
• Court: Hawaii Supreme Court

24 F.Supp.2d 1074

CONSERVATION COUNCIL FOR HAWAI`I, et al., Plaintiffs, v. Bruce BABBITT, Secretary of the Interior, et al., Defendants.

No. Civ. 97-00098 ACK.

United States District Court, D. Hawai`i.

August 10, 1998.

David L. Henkin, Sierra Club Legal Defense Fund, Inc., Honolulu, HI, Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, CA, for Conservation Council for Hawai`i, Sierra Club, Hawaiian Botanical Society.

Michael Chun, Office of the United States Attorney, Honolulu, HI, Kelly E. Mofield, Environmental and Natural Resources Division, Wildlife and Marine Resources Section, Washington, DC, for Bruce Babbitt, John Rogers.

James K. Mee, Ashford & Wriston, Honolulu, HI, Anne M. Hawkins, Robin L. Rivett, Pacific Legal Foundation, Sacramento, CA, for Hawai`i Forest Industry Association, amicus.

ORDER SETTING TIMETABLE FOR DETERMINATION OF CRITICAL HABITAT DESIGNATION OR NONDESIGNATION

KAY, Chief Judge.

BACKGROUND

This dispute involves the United States Fish and Wildlife Service's ("FWS" or "Service") final rules not designating critical habitats for 245 endangered or threatened Hawaiian plant species under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., on the grounds that designation is not prudent. Plaintiffs, including the Sierra Club Legal Defense Fund, for Conservation Council for Hawaii, the Sierra Club, and the Hawaiian Botanical Society, filed this suit challenging these final rules.

On March 9, 1998, the Court issued an order granting Plaintiffs' motion for summary judgment, denying Defendants' motion for summary judgment, and remanding this case to the FWS. The Court held that the FWS, in finding that designation of critical habitats was not prudent, had acted arbitrarily, capriciously, and contrary to law because it had failed to consider all relevant factors. The Court concluded that the case should be remanded to the FWS to reconsider the designation of critical habitats in light of the Court's decision. The Court stated, however, that it "expresses no opinion as to whether or not a critical habitat should be designated for any of the subject species."

At the request of the parties, the Court ordered the parties to submit briefs regarding a timetable for the reconsideration by the FWS. On April 15, 1998, Defendants submitted a brief regarding the timetable ("Def.Mem."). On May 18, 1998, Plaintiffs filed a response ("Pl.Mem."), and, on June 3, 1998, Defendants filed a reply ("Def.Reply").

DISCUSSION

I. Prudency or Designation Determination

Before setting a deadline for action, the Court must first resolve the issue of what action is subject to a deadline. Defendants argue that the Court should set a deadline for "prudency" determinations, and defer designation of critical habitats until a later, undetermined date. Plaintiffs argue that the Court should set a deadline for a determination of whether or not to designate critical habitats. In order to resolve this issues the Court must examine the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-44, from which the Defendants' duties originate.

The ESA provides that, "to the maximum extent prudent and determinable," the Secretary of Interior or Commerce ("the Secretary") shall designate a critical habitat concurrently with the determination that a species is endangered or threatened. 16 U.S.C. § 1533(a)(3). Designation of a critical habitat may be postponed for one year, however, if a critical habitat of such species is not yet determinable at the time the species is listed as endangered or threatened. 16 U.S.C. § 1533(b)(6)(C).

The following deadlines are set out by the ESA: To designate a critical habitat, the FWS must first publish notice of the proposed rule in the Federal Register, not less than 90 days before the effective date of the rule. 16 U.S.C. § 1533(b)(5)(A). At the same time, the FWS must give actual notice of the proposed regulation to a state agency, give notice to professional scientific organizations, and publish a summary of the proposed rule in a newspaper of general circulation. 16 U.S.C. § 1533(b)(5). The FWS must hold one public hearing if any person so requests within forty-five days after publication of the proposed rule. 16 U.S.C. § 1533(b)(5)(E). Within one year of publishing the proposed rule, the FWS must publish a final rule regarding designation. 16 U.S.C. § 1533(b)(6)(A).

The ESA provides no deadline for a determination of prudency separate from the determination of whether or not to designate a critical habitat. In light of the statutory framework, the Court will set deadlines for the publication of proposed rules designating or not designating critical habitats.

Defendants argue that setting a deadline for a designation/non-designation determination is outside the scope of the Court's review. The Plaintiffs, however, challenged the FWS' determination not to designate critical habitats. The Court's March 9, 1998 Order did not address the designation of critical habitats apart from prudency findings because the FWS had concluded that no designation would be made based on a finding that designation would not be prudent. Thus, the Court may properly set a deadline for the proposal of a designation or nondesignation of critical habitats for the subject species.

In addition, the Court notes that to avoid completely its duty to determine a designation or nondesignation of a critical habitat, the FWS would need to demonstrate that such a determination is impossible. "To accept ... [an] indefinite, and virtually open-ended extension of the time for compliance, without a more convincing demonstration of evident impossibility, would be to, in effect, repeal the Congressional mandate." Sierra Club v. Gorsuch, 551 F.Supp. 785, 789 (N.D.Cal.1982). The FWS does not argue that it can never decide whether or not to designate a critical habitat, and thus, the Court will impose a deadline for that determination.

II. Setting of Rulemaking Deadline

A. Standard of Reasonableness

In setting a timetable for agency action, the Ninth Circuit has instructed courts to follow a standard of reasonableness. See Environmental Defense Center v. Babbitt, 73 F.3d 867, 872 (9th Cir.1995); Environmental Defense Ctr. v. Babbitt, No. 96-6987, slip op. at 6 (C.D.Cal. Apr. 10, 1997) (Def.Mem., Exh.3).

B. Parties' Proposals

FWS proposes two alternative timetables for reconsideration ("Option 1" and "Option 2"). Although the FWS presents each timetable with deadlines for "prudency" decisions, not proposed and final rules, these timetables may be informative as guidelines regarding a reasonable time for critical habitat designation or nondesignation. Either option, if chosen, would require the FWS, within 30 days of the Court's order, to publish a notice in the Federal Register soliciting new information relevant to the critical habitat inquiry. (Def.Mem., Clark Dec. ¶ 16.) The public would have 60-90 days to provide such information.

Under Option 1, at the start of fiscal year ("FY") 1999, all four of the Pacific Islands Ecoregion ("PIE") Office's listing biologists would begin analyzing available information, and preparing Federal Register notices. (Def.Mem., Clark Dec. ¶ 17.) Beginning in February 1999, the FWS would start publishing, in the Federal Register, reconsidered decisions as to the "prudency" of critical habitat for each of the 245 Hawaiian plant species. Considering species by ecosystem, the biologists would complete final reconsideration of "prudency" determinations by November 30, 2000. (Def.Mem., Attach.1.) Option 1 amounts to the completion of one "prudency" finding every 2.1 working days. (Def.Mem., Clark Dec. ¶ 20.)

Under Option 2, at the start of FY 1999, two rather than all four of PIE's listing biologists would begin work on "prudency" determinations in the same manner as under Option 1. (Def.Mem., Clark Dec. ¶ 24.) FWS would begin publishing reconsidered decisions in February 1999. Considering species by ecosystem type, all the final reconsidered "prudency" decisions would be finished and published by April 30, 2002. (Def.Mem., Attach.2.) Option 2 amounts to the completion of one "prudency" determination every 3.4 working days. (Def.Mem., Clark Dec. ¶ 24.)

Plaintiffs propose a timetable that requires the FWS to publish proposed critical habitat designations for all 245 Hawaiian plants within 26 months of the Court's timetable order. (Pl.Mem. at 10-11.) In addition, they request that the Court require the FWS to address first those plants most directly affected by federal agency actions, instead of proceeding by ecosystem type. (Pl.Mem. at 13.)

C. Defendants' Concerns

Defendants argue that they need much time because their resources are limited. The Court appreciates this fact but finds that some of Defendants' justifications for lengthening the time period for agency action are not well-grounded. The Court addresses the FWS' concerns below.

i. Time Period for Public Comment

Defendants argue that a preliminary public comment period, before publishing proposed critical habitat designations or nondesignations, is needed to ensure that the FWS considers the best scientific and commercial information available, as required by 16 U.S.C. § 1533(b)(1)(A). Although one-third of the species at issue were listed within the last two years, two-thirds were listed four or more years ago. (Def. Reply at 7). Defendants argue that a 90 day period for public comment is necessary to update information regarding these species. Defendants further argue that, in accordance with the Court's previous Order, a public notice and comment period would serve an important educational function. Plaintiffs respond that all of the species have been listed within the last seven years, and that the ESA provides ample opportunity for public input after the FWS publishes proposed critical habitat designations.

The ESA specifies that the FWS should receive public comment following the publication...