Rift Arises in Conservation Community Over Benefits of Critical Habitat
The conservation community in Hawai`i is divided over a proposal that would have the U.S. Fish and Wildlife Service designate critical habitat for 245 species of endangered plants.
To some, such as the Earthjustice Legal Defense Fund, which last year won a lawsuit challenging the service’s decision to avoid designating critical habitat for the plants, critical habitat is an important plate in the armor of the Endangered Species Act.
No one should be surprised to learn that most hunters are against critical habitat designation. For example, in a petition directed to Robert Smith, Pacific Islands manager for the Fish and Wildlife Service, the Hawai`i Hunters’ Advisory Council says the “first priority” of the service should be to remove species from the endangered list; “critical and essential … habitat should not be considered until such delistings have been accomplished.”
To the managers of some natural resource agencies, critical habitat designation is one more wrap of red tape that binds the hands of dedicated public servants and drains money and personnel from the on-hands work of helping plant. The views of Mike Buck, head of the Department of Land and Natural Resources’ Division of Forestry and Wildlife, are typical: “Just drawing lines on a map won’t save the plants. It will cost a lot of money, though.” Buck also expresses concerns that it will further polarize dealings with private landowners in Hawai`i. Finally, he notes that mapping plants where they are now might not be reflective of where the best habitat is in the first place, if that habitat has been degraded. “Some plants are where they don’t prefer to be. And, supposing we do have critical habitat and then lose a pollinator [for an endangered plant], is that area still critical habitat?”
Background
To understand the rift, it is necessary to go back at least two years, to January 1997, when Earthjustice, representing the Conservation Council for Hawai`i, the Sierra Club, and the Hawaiian Botanical Society, sued the Fish and Wildlife Service over its decision against designation of critical habitat for hundreds of threatened and endangered Hawaiian plants. The service had justified the decision with a blanket claim that such designation would be imprudent, since it would, first, increase the chance that vandals could harm listed plants; second, have little benefit for plants on private or state lands; and, third, would not meaningfully help protect plants on federal lands, since they already are protected by virtue of being listed. (For further background, see Environment Hawai`i, April 1998, pp. 10-11.)
U.S. District Judge Alan Kay rejected the service’s arguments and imposed a timetable within which the service was to propose critical habitat designation. Under that timetable, the service is to publish new proposed decisions for at least 100 of the plants by November 30, 2000, and for the remainder by April 30, 2002.
To set the stage for that, the Fish and Wildlife Service announced it would be receiving comment on whether designation of critical habitat for these 245 species would be “prudent.” The deadline for comment on this issue was March 1, 1999.
In a 12-page informational statement, Earthjustice outlines its own position. Against arguments that listing itself is sufficient protection for endangered or threatened plants, it argues: “ESA section 7 provides two separate, legally enforceable limitations on federal agency actions… The first — which comes into force automatically whenever a species is listed — prohibits federal actions that ‘jeopardize’ the species’ continued existence, i.e., actions that would push the species to extinction. The second — which protects only species with designated critical habitat — bars federal agencies from authorizing, funding, or carrying out any action likely to adversely modify or destroy critical habitat, i.e., actions that will interfere with the recovery of listed species. Thus, listed species benefit from both section 7 protections only when critical habitat has been designated.”
Where just one of the two prongs of Section 7 exists, federal conservation programs may not be as aggressive as where both are found. As an example of this, the Earthjustice report cites the Saddle Road realignment project on the Big Island: “To mitigate impacts on palila critical habitat, the United States Army and federal Department of Transportation — the project’s federal sponsors — propose to spend more than $14 million to, among other things, fence and remove ungulates in 3,000 acres of native forest at Kipuka `Alala. In contrast, no mitigation measures are proposed to compensate for habitat degradation affecting other listed species that occur in the project area, but lack critical habitat protection, including the nene [Hawaiian goose], `io [Hawaiian hawk], `ope`ape`a [hoary bat], dark-rumped petrel, Newell’s shearwater, and several listed plants.”
In defending its earlier decision to find critical habitat designation not prudent, the Fish and Wildlife Service had claimed designation would likely increase vandalism. However, as Earthjustice notes, “Significantly, there have been no published reports that any of the three Hawaiian plants with critical habitat have ever suffered overcollecting or vandalism as a result of that designation.” In any event, the federal rules listing species as endangered already provide what is probably greater detail than critical habitat maps as to the specific locations of individuals, Earthjustice notes.
— Patricia Tummons
Volume 9, Number 9 March 1999
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