Aina Nui Corp. v. Jewell
| Decision Date | 30 September 2014 |
| Docket Number | Civil No. 13–00438 DKW–RLP. |
| Citation | 52 F.Supp.3d 1110 |
| Court | U.S. District Court — District of Hawaii |
| Parties | AINA NUI CORPORATION, Plaintiff, v. Sally JEWELL, in her official capacity as Secretary of the United States Department of the Interior; United States Fish and Wildlife Service; Daniel Ashe, in his official capacity as Director of the U.S. FWS, Defendants. |
James F. Rusk, Robert J. Uram, Sheppard Mullin Richter & Hampton LLP, San Francisco, CA, Jennifer A. Benck, Carlsmith Ball LLP, Honolulu, HI, for Plaintiff.
Bridget Kennedy McNeil, U.S. Department of Justice, Denver, CO, for Defendants.
ORDER DENYING PLAINTIFF AINA NUI CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND GRANTING FEDERAL DEFENDANTS' CROSS–MOTION FOR SUMMARY JUDGMENT
Aina Nui Corporation (“ANC”) challenges the United States Fish and Wildlife Service's (the “Service” or “FWS”) designation of a portion of ANC's land holdings on Oahu as critical habitat for species listed as threatened and endangered pursuant to the Endangered Species Act, 16 U.S.C. § 1531 et seq. (“ESA”). ANC contends that the designation violates the ESA, Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”), and National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”).
Because the Service promulgated the Final Rule in compliance with public notice and comment requirements, designated critical habitat utilizing an ecosystem approach that is consistent with its statutory mandate, and properly determined that a portion of ANC's land holdings is essential to the conservation of species identified in the Final Rule, and because the Service's critical habitat designation is not subject to NEPA review as a matter of law, the Court DENIES ANC's Motion for Summary Judgment and GRANTS Federal Defendants' Cross–Motion for Summary Judgment.
Section 4 of the ESA requires the Service to determine when a species is “threatened” or “endangered,” designations that trigger various statutory and regulatory protections. 16 U.S.C. §§ 1533, 1538. When the Service determines that a particular species is threatened or endangered, Section 4 also requires the Service to designate a “critical habitat” for the species. 16 U.S.C. § 1533(a)(3). Section 3 defines “critical habitat” to include:
16 U.S.C. § 1532(5)(A). After identifying the geographic area that meets this two-pronged definition, the Service may nonetheless exclude certain portions of that area “if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless ... the failure to designate such area as critical habitat will result in the extinction of the species concerned.” 15 U.S.C. § 1533(b)(2).
In short, critical habitat designation generally involves three steps:
(1) identifying those areas occupied by the species that contain the features essential to the species' survival, (2) determining if any areas unoccupied by the species are essential for the conservation of the species, and then (3) excluding from these two areas any portions where the benefits of exclusion outweigh the benefits of inclusion, so long as such exclusion will not result in the species' extinction.
Critical habitat is further governed by regulations that compel the Service to “focus on the principal biological or physical constituent elements within the defined area that are essential to the conservation of the species.” 50 C.F.R. § 424.12(b). These “principal constituent elements” (“PCEs”) “may include, but are not limited to, the following: roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types.” Id.
On September 18, 2012, the Service designated 42,804 acres on Oahu as critical habitat for 124 threatened and endangered species, including a plant known as the ‘Ewa Plains ‘akoko. See 77 Fed. Reg. 57648 (Sept. 18, 2012) (“Final Rule”). The designation includes 96 acres owned by ANC (the “Property”) within the Kapolei West project (“Project”). The Final Rule designates “Lowland Dry Unit 8” (“LDU–8”), consisting largely of ANC's Property, as critical habitat for 16 plant species, including the ‘akoko. According to ANC, the LDU–8 critical habitat designation will significantly impact its planned development of 559 resort-residential homes, 223 affordable homes, and half of an 18–hole golf course. ANC Mot. for Summary Judgment (Dkt. No. 32), at 1. ANC asks the Court to invalidate and enjoin the Service from enforcing the Final Rule, at least to the extent it affects LDU–8, and to remand the Final Rule for designation of critical habitat in accordance with federal law.
The Service listed the ‘akoko as endangered in 1982. Notwithstanding this designation, the Service did not identify critical habitat for the ‘akoko at that time because the essential habitat elements could not be identified in the greatly altered ecosystem of the ‘Ewa Plain. 47 Fed. Reg. 36846–48 (Aug. 24, 1982). The 1982 listing provided, however, that should further study identify areas deemed essential to conservation, they might be designated as critical habitat. By 1994, such further study included the Service's draft recovery plan for the ‘akoko (“1994 Recovery Plan”). AR 26145–26232. At that time, there were only four known populations of ‘akoko on the ‘Ewa Plain. AR 26166. Human-induced habitat loss, competition from non-native plant species, and fire had been the major causes of decline. AR 26176–79.
The 1994 Recovery Plan specified that each of the four existing ‘Ewa Plains populations should be restored to greater numbers, with the following targets: Population 1, 5,000 plants; Populations 2 and 4, a minimum of 1,000 reproductive plants; and Population 3, a minimum of 1,000 plants. AR 26193, 26200–04. The 1994 Recovery Plan also established the following criteria for downgrading the ‘akoko's listing from endangered to threatened: at least three self-reproducing populations in each location with a minimum of 1,000 reproductive plants, with a land area sufficient to provide a buffer of thirty to fifty meters around the expanded population, in addition to maintenance of the 30,000 plants on the Island of Moloka‘i. AR 26191.
With these targets in mind, the Service began its rulemaking for critical habitat designation in early 2008. AR 8633, 8637. On August 2, 2011, the Service published a notice of proposed rulemaking to list 23 species on the island of Oahu as endangered, and to designate or revise critical habitat for those 23 species as well as for 101 previously listed plant species, including ‘akoko and Achyranthes. 76 Fed. Reg. 46362 (Aug. 2, 2011) (“Proposed Rule”). The Service proposed LDU–8 as critical habitat for ‘akoko, Achyranthes, and 14 other species. The Proposed Rule stated that LDU–8 provided the PCEs necessary for the reestablishment of wild populations of all 16 species. The PCEs were defined by elevation, precipitation, substrate, and associated native plants, in addition to species-specific requirements, such as coral outcrop substrate for ‘akoko. Id. at 46409, 46415. To identify critical habitat, the Proposed Rule utilized what the Service referred to as the “ecosystem approach,” whereby, in addition to the features essential to the conservation of each species, the Service determined “that the conservation of each depends, at least in part, on the successful functioning of the physical or biological features of the commonly shared ecosystem.” Id. at 46409, 46365.
The initial public comment period closed on October 3, 2011. 76 Fed. Reg. 46362. ANC and the affiliated James Campbell Company LLC submitted comments on the Proposed Rule, asserting that land within LDU–8 should not be designated as critical habitat because it was not suitable for the listed species, lacked the necessary PCEs, and was not essential for the conservation of the listed species. AR 9047. The Service also received comments in opposition to the designation of LDU–8 from State agencies, but did not receive comments specifically supporting designation of LDU–8. See AR 9011–9259. The Service held a meeting with Steve Kelly, a James Campbell Company representative, on October 14, 2011, to discuss the company's request to re-evaluate the designation of LDU–8. AR 9011. The Service also conducted a site visit of LDU–8 with Kelly and other James Campbell Company representatives in November 2011. AR 3007–15, 4759.
On April 12, 2012, the Service made available the draft economic analysis (“DEA”) that evaluated the economic effects of the proposed designation, proposed the removal of 185 acres from the area previously earmarked as critical habitat from within LDU–8, and reopened the public comment period. 77 Fed. Reg. 21936 (Apr. 12, 2012). The Service specifically sought comment on whether PCEs were present in LDU–8, whether all of LDU–8 was essential for the conservation of the species, and the possible economic impacts of the designation of LDU–8 as critical habitat. AR 21937. The Service also requested information on any planned land use activities that might require a federal permit, license, funding, or other federal...
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