JADE STARMAN
Deputy Attorney General
District of Hawaii
Room 6-100
PJKK Federal Building
Honolulu, Hawaii 96850
Telephone: (808) 541-2850
Attorney for Intervener,
State of Hawaii,
Division of Forestry and Wildlife,
Division of Aquatic Resources
Department of Land and Natural Resources
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SAVE HAWAII’S GREEN SEA )
TURTLES, a non-profit corporation; ) Civil No. 04-12345 (KL)
MALAMA NA HONU, a non-profit )
corporation, )
)
Plaintiffs )
)
v. )
)
NATIONAL MARINE FISHERIES )
SERVICE, NATIONAL OCEANIC AND ) STATE OF HAWAII,
ATMOSPHERIC ADMINISTRATION; ) DIVISION OF FORESTRY AND
U. S. FISH & WILDLIFE SERVICE, ) WILDLIFE and DIVISION OF
U.S. DEPARTMENT OF INTERIOR, ) AQUATIC RESOURCES,
) DEPARTMENT OF LAND AND
Defendants ) NATURAL RESOURCES
) NOTICE OF MOTION FOR
) SUMMARY JUDGMENT;
and ) MOTION FOR SUMMARY
) JUDGMENT; MEMORANDUM
) IN SUPPORT OF MOTION FOR
ISLAND RESOURCE PARTNERSHIP; ) SUMMARY JUDGMENT;
HAWAII FISHING COALITION; ) CONCISE STATEMENT OF KANAKA MAOLI SUBSISTENCE ) MATERIAL FACTS;
COALITION; DIVISION OF FORESTRY ) CERTIFICATE OF SERVICE
AND WILDLIFE and DIVISION OF )
AQUATIC RESOURCES, STATE )
DEPARTMENT OF LAND AND )
NATURAL RESOURCES, )
STATE OF HAWAII, ) Hearing
) Date: May 3, 2002
Interveners ) Time: 4:00 p.m.
) Judge: Hon. Kimo Linden
NOTICE OF MOTION
To: All Parties and Counsel
YOU ARE HEREBY NOTIFIED that the following motion will be heard before
the Honorable Kimo Linden, United States District Judge, in his courtroom in the United States
Courthouse, 300 Ala Moana Boulevard, Honolulu, Hawaii on May 3, 2002, at 4:00 p.m., or as
soon thereafter as counsel may be heard.
Respectfully submitted this 1st day of May, 2002.
JADE STARMAN
Deputy Attorney General
District of Hawaii
Division of Forestry and Wildlife
Division of Aquatic Resources
State Department of Land and
Natural Resources
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SAVE HAWAII’S GREEN SEA )
TURTLES, a non-profit corporation; ) Civil No. 04-12345 (KL)
MALAMA NA HONU, a non-profit )
corporation, ) INTERVENERS’ MOTION
) FOR SUMMARY JUDGMENT
Plaintiffs )
)
v. )
)
NATIONAL MARINE FISHERIES )
SERVICE, NATIONAL OCEANIC AND )
ATMOSPHERIC ADMINISTRATION; )
U. S. FISH & WILDLIFE SERVICE, )
U.S. DEPARTMENT OF INTERIOR, ) ) DEPARTMENT OF LAND AND
Defendants )
)
and )
)
)
ISLAND RESOURCE PARTNERSHIP; )
HAWAII FISHING COALITION; )
KANAKA MAOLI SUBSISTENCE )
COALITION; DIVISION OF FORESTRY )
AND WILDLIFE and DIVISION OF )
AQUATIC RESOURCES, STATE )
DEPARTMENT OF LAND AND )
NATURAL RESOURCES, )
STATE OF HAWAII, ) ) Date: May 3, 2002
Interveners ) ) Judge: Hon. Kimo Linden
INTERVENERS’ MOTION FOR SUMMARY JUDGMENT
Comes now the interveners, State of Hawaii Division of Forestry and Wildlife
and Division of Aquatic Resources, Department of Land and Natural Resources, by and through their undersigned attorneys, hereby move this court to grant interveners’ motion for summary Judgment pursuant to Federal Rules of Civil Procedure 56 and Local Rule 56.1.
Interveners’ motion seeks summary judgment that: 1) defendants did not violate the Administrative Procedures Act (APA) by abusing their discretion, or acting arbitrarily or capriciously under 5 U.S.C. § 706, in partially denying plaintiff’s petition to designate critical habitat; 2) defendants’ decision to grant critical habitat for the Hawaiian Green Sea Turtle (HGST) is discretionary because the HGST is a pre-1978 amendment listed species and this Court should defer to the federal agencies’ discretion ; and 3) defendants’ decision to partially designate the critical habitat requested in plaintiffs’ petition was based on the best available science and this Court should uphold the agencies’ decision.
Respectfully submitted this 1st day of May 2002.
JADE STARMAN
Deputy Attorney General
District of Hawaii
Division of Forestry and Wildlife
Division of Aquatic Resources
State Department of Land and
Natural Resources
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SAVE HAWAII’S GREEN SEA )
TURTLES, a non-profit corporation; ) Civil No. 04-12345 (KL)
MALAMA NA HONU, a non-profit )
corporation, )
)
Plaintiffs )
)
v. )
)
NATIONAL MARINE FISHERIES )
SERVICE, NATIONAL OCEANIC AND )
ATMOSPHERIC ADMINISTRATION; )
U. S. FISH & WILDLIFE SERVICE, )
U.S. DEPARTMENT OF INTERIOR, ) ) DEPARTMENT OF LAND AND
Defendants )
)
and )
)
)
ISLAND RESOURCE PARTNERSHIP; )
HAWAII FISHING COALITION; )
KANAKA MAOLI SUBSISTENCE )
COALITION; DIVISION OF FORESTRY )
AND WILDLIFE and DIVISION OF )
AQUATIC RESOURCES, STATE )
DEPARTMENT OF LAND AND )
NATURAL RESOURCES, )
STATE OF HAWAII, ) ) Date: May 3, 2002
)
Interveners ) ) Judge: Hon. Kimo Linden
TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTERVENERS’ MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT AND RESONSE
TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
PAGE
I. INTRODUCTION ...... 1
II. THE ENDANGERED SPECIES ACT AND STANDARD OF REVIEW ...... 2
A. Section 4(a)(3) and 4(b)(2) of the ESA and Designation of
Critical Habitat ...... 3
B. Section 3(5)(B) of the ESA and Critical Habitat Designation for
Pre-1978 Listed Species ...... 4
C. Standard of Review of Final Agency Action ...... 5
III. STATEMENT OF FACTS ...... 7
A. Listing and Current State of the Hawaiian Green Sea Turtle...... 7
B. Threats to the Hawaiian Green Sea Turtle ...... 8
C. Native Hawaiian Take ...... 9
D. Recovery ...... 9
IV. ARGUMENT ...... 10
A. The Post-1978 Duty to Designate Critical Habitat Does not Apply to
Pre-1978 Listed Species ...... 11
1. Case Law Supports Giving Much Deference to an Agency’s
Daily Activities and Decisions ...... 12
2. Although Retroactivity is One Policy Argument, it is Not the
Law and it is the Duty of the Legislature to Change or Fix the
Statue If it is To Be Interpreted Retroactivity...... 13
B. Defendants Have Not breached the “Arbitrary and Capricious” Standard ...... 14
C. The Policy is To Follow the Statute’s Plain Language Absent Clear
Legislative Intent or Guidelines ...... 17
V. CONCLUSION ...... 18
TABLE OF AUTHORITIES
CASES PAGE(S)
STATUTES
REGULATIONS
I. INTRODUCTION
Interveners, the State of Hawaii Division of Forestry and Wildlife (“DOFAW”) and Division of Aquatic Resources, Department of Land and Natural Resources (“DLNR”) (collectively” interveners”) join Defendants National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“FWS”) (collectively “defendants”) and respectfully move this Court for summary judgment on all claims in Plaintiffs’ complaint. Plaintiffs challenge defendants’ decision not to designate critical habitat for the threatened population of the Hawaiian Green Sea Turtle (“HGST”).
Plaintiffs allege that, although the HGST was listed as threatened previous to the 1978 amendments (“pre-1978 listed species”) to the Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1531 et seq., the amendments’ requirement to designate critical habitat concurrently with listing should be applied retroactively. Plaintiffs further argue that defendants’ decision not to promptly designate all critical habitat listed in plaintiffs’ petition, including: 1) all “inshore” (shoreline seaward to 1 mile) areas of the Main Hawaiian Islands (MHI); 2) all “coastal” (shoreline seaward to 3 miles) areas of the Northwest Hawaiian Islands (NWHI); 3) all beaches with indications of current or historical nesting on the MHI and NWHI; and 4) all beaches with indications of current or historical basking on the MHI and NWHI, was arbitrary, capricious and an abuse of discretion under the Administrative Procedures Act (APA), 5 U.S.C. § 701 et. seq.
As this motion demonstrates, plaintiffs’ claims are based on an improper interpretation of the ESA, a misapplication of relevant case law and the APA, and an exaggeration of the decline of HGST numbers. In fact, because the ESA amendments are not to be applied retroactively to pre-1978 listed species, defendants’ decision to designate critical habitat is purely discretionary, and this Court should not substitute its judgment for that of the federal agencies unless they acted arbitrarily and capriciously. A review of all available scientific and commercial evidence in the Hawaii Green Sea Turtle Critical Habitat Designation, 100 Fed. Reg. 60,000 (April 1, 2003) (“HGST/CH Rule”) demonstrates that defendants’ determinations were well-reasoned, rationally based, and resulted from the best available science, considering all relevant factors. Accordingly, this Court should affirm defendants’ determinations and grant this motion for summary judgment.
Furthermore, interveners, as state agencies, seek summary judgment because the HGST/CH Rule properly addresses the state’s needs and concerns by: not overburdening or overlapping existing state and federal programs; using only available science so that realistic lines are drawn as opposed to drawing unrealistic lines around degraded areas; delaying designation for some areas to generate positive public support; and applying narrow designation where habitat is not yet determinable. Therefore, interveners agree with defendants’ determination for the amount and type of critical habitat designation at this time and oppose any further immediate designation, as it would not reflect the best available science, place too much of an additional bureaucratic burden on the state in terms of administration, and possibly polarize the state’s relations with its constituents.
II. THE ENDANGERED SPECIES ACT AND STANDARD OF REVIEW
The dual purposes of the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq., (ESA) are to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species.” Id. at § 1531(b). The policy of the Act is that “all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purpose of [the ESA].” Id. at § 1531(c). The ultimate goal of the ESA is to significantly recover a species so that it can eventually be delisted.[1] National Marine Fisheries Service & U.S. Fish and Wildlife Service. Recovery Plan for the U.S. Population of the Green Turtle (Chelonia mydas), 1998 (Recovery Plan). Listing a species as endangered or threatened[2] is at the heart of the ESA and triggers a series of special protections, including critical habitat designation.
A. Section 4(a)(3) and 4(b)(2) of the ESA and Designation of Critical Habitat
Section 4(a)(3)(A) of the ESA contains requirements for the designation of critical habitat “concurrently” with listing. 16 U.S.C. § 1533(a)(3)(A). Critical habitat for both threatened and endangered species is defined in Section 3 of the ESA as “specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential to the conservation of the species.” Id. at § 1532(5)(A).
The duty requiring critical habitat designation at the same time as listing was added to the ESA as an amendment in November 1978. For species such as the Hawaiian Green Sea Turtle (HGST), listed in July of 1978 prior to the November 1978 amendments, the decision to designate critical habitat is discretionary. Fund For Animals v. Babbit, 903 F. Supp. 96, 115, n.8 (D.D.C. 1995), amended by 967 F. Supp. 6 (D.D.C. 1997) (upholding Fish and Wildlife Service’s decision to deny plaintiff’s petition for the designation of critical habitat for the grizzly bear). Fund For Animals based its interpretation of the statute on the permissible rather than mandatory wording in Section 3 of the ESA under the definition of critical habitat, concluding that “Congress excused from this requirement those species that were already listed at the time the Act was amended, specifying that ‘critical habitat may be established for [species listed prior to the amendment] . . . for which no critical habitat has heretofore been established.” Id. at 104 (quoting 16 U.S.C. § 1532(5)(B)).
Section 4(b)(2) of the ESA provides the basis for determining critical habitat on the “best scientific data available and after taking into consideration the economic impact and any other relevant impact.” 16 U.S.C. § 1533(b)(2). The Secretary also has discretion to exclude any area as critical habitat if “the benefits of such exclusion outweigh the benefits of specifying such area as part 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.” Id. Defendants properly based its determinations to partially designate critical habitat for the HGST on: the best available science from the Recovery Plan; lack of any additional benefit from designation because of existing protections under Sections 7 and 9 of the ESA; lack of any additional benefit because existing state and federal reserves already control public access; and adverse economic consequences for future development outweigh benefits to the HGST.
B. Section 3(5)(B) of the ESA and Critical Habitat Designation for
Pre-1978 Listed Species
Section 3(5)(B) of the ESA provides that critical 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) (emphasis added). This passage was added in the November 1978 amendments to the ESA and refers to pre-1978 listed species, for which concurrent designation with listing is not required. See 16 U.S.C. § 1533(a)(3)(A). The Court in Fund for Animals, 903 F. Supp. at 115, n.8, specifically agreed with defendant FWS that “the plain language of the ESA renders the decision to designate critical habitat . . . discretionary” for species listed prior to the 1978 amendments.
Because the ESA does not provide a clear duty to designate critical habitat for pre-1978 listed species, failure to designate will not trigger a judicial determination to set aside the agency’s decision, as would a failure to concurrently designate critical habitat with listing for a post-1978 listed species or for a failure to list. See Northern Spotted Owl v. Lujan, 758 F. Supp. 621 (W.D. Wash. 1991) (Court found Fish and Wildlife Service abused its discretion by determining not to designate critical habitat concurrently with the listing of the northern spotted owl in 1990.); Natural Resources Defense Council v. U.S. Department of Interior, 113 F.3d 1121 (9th Cir. 1997) (“NRDC”) (Court reversed grant of summary judgment to defendants, finding that defendants, Fish and Wildlife Service, failed to discharge its statutory obligation to designate critical habitat concurrently with the listing of the coastal California gnatcatcher as threatened in 1993.); Northern Spotted Owl v. Hodel, 716 F. Supp. 479. (W.D. Wash. 1988) (Court determined Fish and Wildlife Service’s decision not to list the northern spotted owl under the ESA was arbitrary, capricious and contrary to law.).