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

Citation2 F.Supp.2d 1280
Decision Date09 March 1998
Docket NumberNo. CIV. 97-00098 ACK.,CIV. 97-00098 ACK.
PartiesCONSERVATION COUNCIL FOR, HAWAI`I, et al., Plaintiffs, v. Bruce BABBITT, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)

David L. Henkin, Sierra Club Legal Defense Fund, Inc., Honolulu, HI, Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc., San Francisco, CA, for plaintiffs.

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 defendants.

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 GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

KAY, Chief Judge.

BACKGROUND

Plaintiffs Conservation Council for Hawai`i, Sierra Club, and Hawaiian Botanical Society ("Plaintiffs") filed this action against Secretary of Interior Bruce Babbitt and the Director of the United States Fish and Wildlife Service Jamie Clark ("Defendants") seeking the Court's review of the United States Fish and Wildlife Service's final rules stating that no critical habitat will be designated for 245 plant species that are listed as endangered or threatened under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq.1

Since the enactment of the ESA, the Fish and Wildlife Service ("FWS") has listed approximately 700 plants nationwide as endangered or threatened. Of those 700 plants, the FWS has designated a critical habitat for twenty-four. 264 of the 700 plants listed nationwide, i.e., more than one-third, are located in Hawaii. Of the 264 plants listed in Hawaii, the FWS has designated a critical habitat for only three. Since 1990, the FWS has not designated a critical habitat for a single plant in Hawaii.

Plaintiffs filed a motion for summary judgment and memorandum in support thereof on November 12, 1997 ("Pl.Mem."). On December 3, 1997, Defendants filed a motion for and memorandum in support of summary judgment and a memorandum in opposition to Plaintiffs' motion for summary judgment ("Def.Mem."). On December 29, 1997, Plaintiffs filed a memorandum in opposition to Defendants' motion for summary judgment and a reply memorandum in support of their motion for summary judgment ("Pl.Op."). On January 21, 1998, Defendants filed a reply memorandum in support of their motion for summary judgment ("Def.Reply"). On January 26, 1998, Plaintiffs filed a sur-reply ("Pl.Sur-Reply"). On February 2, 1998, the Hawai`i Forest Industry Association ("HFIA") by leave of the Court filed a brief amicus curiae. Plaintiffs filed a response to HFIA's brief on February 5, 1998. The Court heard oral arguments on February 20, 1998.

In brief, the FWS based its nondesignation decisions on three reasons. First, for all but one of the 245 plant species, the designation of a critical habitat would increase the likelihood of illegal taking or vandalism. Second, for plant species located on private property, designation of a critical habitat would provide little or no benefit because the designation of a critical habitat affects solely federal governmental activity. Third, for plant species located on federal government property, the designation of a critical habitat provides little or no additional benefit beyond the existing precautions the federal government must take because the plant species are listed as endangered or threatened.

STANDARD OF REVIEW

Under the Administrative Procedures Act ("APA"), a district court may review an agency's decision to determine whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir.1993) (quoting § 706 of the APA, 5 U.S.C. § 706(2)(A)). "In making this inquiry, [the court] ask[s] whether the agency `considered the relevant factors and articulated a rational connection between the facts found and the choice made.'" Natural Resources Defense Council v. United States Dept. of Interior, 113 F.3d 1121, 1124 (9th Cir.1997) ("NRDC") (quoting Resources Ltd., 35 F.3d at 1304). The Court's review is typically limited to the administrative record in existence at the time the agency made its decision. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).

The Court "accord[s] a high degree of deference to an agency's interpretation of the statutory provisions and regulations it is charged with administering." NRDC, 113 F.3d at 1124 (citation omitted). Nonetheless, "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Summary judgement shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgement as a matter of law. Fed.R.Civ.P. 56(c). Where, as here, the Court's review is limited to the administrative record, there are no genuine issues of material fact, and summary judgment is proper.

DISCUSSION
A. Statutory Framework

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).

A critical habitat is defined as

(i) the specific areas within the geographical area occupied by the species ... on which are found those physical and 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 geographical area occupied by the species ... upon a determination of the Secretary that such areas are essential for the conservation of the species.

16 U.S.C. § 1532(5)(A).

FWS regulations provide that the designation of a critical habitat is not prudent in either of two situations:

(i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species, or

(ii) Such designation of critical habitat would not be beneficial to the species.

50 C.F.R. § 424.12(a)(1). In addition, the Secretary shall consider the best scientific data available and the economic impact of designation. 16 U.S.C. § 1533(b)(2). The Secretary may exclude any area from a critical habitat if the benefits of such exclusion outweigh the benefits of designating that area, unless such exclusion will result in extinction of the species. Id.

One effect of the designation of a critical habitat is the consultation requirement in Section 7 of the ESA, which provides:

Each federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is ... critical ....

16 U.S.C. § 1536(a)(2) (emphasis added).

A proposed rule designating a critical habitat, like the determination that a species is endangered or threatened, is published in the federal register and "a newspaper of general circulation in each area of the United States in which the species is believed to occur." 16 U.S.C. § 1533(b)(5). In addition, the FWS gives actual notice of a regulation proposing a habitat designation to the state agency and county in which the species is believed to occur. Id. A final rule designating a critical habitat is also published in the Federal Register. 16 U.S.C. § 1533(b)(6).

B. Critical Habitat Designation

With respect to the rules that Plaintiffs challenge, the FWS found that designation of a critical habitat for 245 species of plants in Hawaii would not be prudent. For each of these species, the FWS based its decision on one or more of the following three reasons. First, designation would increase the likelihood of illegal taking and vandalism. Second, little benefit would result from designation because the plant species is located on private land. And, third, little benefit would result from designation because the plant species is on federal land and designation of a critical habitat would not increase the precautions that the government must already take. For the reasons that are discussed below, the Court finds that the FWS failed to establish a rational basis for each of these reasons.

1. "Increased Threat Rationale"

With respect to all but one of the 245 species of plants at issue,2 the FWS declined to designate a critical habitat at least in part because the FWS concluded that designation of a critical habitat would increase the likelihood that individuals would illegally take or vandalize the plants. The court in NRDC called this "the increased threat rationale." 113 F.3d at 1125. In most cases, the FWS had no evidence of prior taking or vandalism. On the contrary, the FWS based its conclusion on the fact that there were very few plants in the species' population and that, in many cases, even a single act of taking or vandalism could cause the extinction of the plant species. Furthermore, the FWS noted that plants, unlike animals, cannot take measures to avoid human contact.

The FWS' rationale can be applied to all but the few plant species that are both endangered or threatened and also have a sufficient number that taking or...

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