In the United States District Court s17


Intervenors Kanaka Maoli Subsistence Coalition (“Coalition”), a Native Hawaiian group seeking continued culturally appropriate use of the green sea turtle, respectfully moves this Court for summary judgment on all claims in plaintiff’s complaint. Plaintiff challenges the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“FWS”) denial of part of their Administrative Procedures Act (“APA”) petition for marine and shoreline critical habitat designation around the Main Hawaiian Islands (“MHI”) for the Hawaiian population of the Green Sea Turtle (“HGST”). Although part of Plaintiff’s petition was granted, Plaintiff claims that the NMFS and FWS acted arbitrarily, capriciously, and abused its discretion under the APA in denying other parts of its petition.

As this motion demonstrates, Intervenor Coalition does not question the decision of NMFS and FWS to partially grant Plaintiff’s petition, but does challenge Plaintiff’s claim that NMFS and FWS acted arbitrarily or capriciously and abused its discretion by denying part of Plaintiff’s petition. The HGST is listed as a threatened species under the Endangered Species Act (“ESA”) and therefore enjoys the necessary amount of protection with limited critical habitat designation, as set forth in the final rule published in the Federal Register on April 1, 2003. Further critical habitat designation would be redundant to the protections the HGST already receives as a threatened species with some critical habitat designation. Although Coalition supports long-term recovery and conservation of the HGST, we believe additional critical habitat designation is not necessary and would not provide added benefit towards the HGST’s conservation and recovery. Coalition agrees with current critical habitat designation. In the near future, Coalition is in favor of a trend towards less protection for the HGST in hopes of reviving Native Hawaiian cultural practices concerning the HGST. Further critical habitat designation beyond current designation is opposite to this trend of decreased protection and Coalition supports a movement towards de-listing the HGST from the ESA soon. In addition, studies have indicated that HGST numbers are increasing under ESA protection, even without any designation of critical habitat. National Marine Fisheries Service, U.S. Dep’t of Commerce & U.S. Fish and Wildlife Service, U.S. Dep’t of the Interior, Recovery Plan for the U.S. Population of the Green Turtle (1998) (“Recovery Plan”). Accordingly, this Court should grant Intervenor’s motion for summary judgment.


A. Endangered Species Act

The Endangered Species Act is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tennessee Valley Authority v. Hill, 437 U.S. 153, (1978). The Congressional purpose of this statute “was to halt and reverse the trend towards species extinction.” Id. at 184. The primary goal of the ESA is to conserve both species and the ecosystems on which they rely.[1] 16 U.S.C. § 1531(b).

The ESA provides broad protection for listed species. Section 9 of the ESA prohibits “taking” any listed species. 16 U.S.C. § 1538. “Take” is broadly defined as “harass, harm, pursue, hunt, shoot, would, kill, trap, capture or collect, or to attempt to engage in such conduct.” 16 U.S.C. § 1532.

Pursuant to the 1978 Amendments to the ESA, Section 4 of the ESA requires the Secretary to designate critical habitat at the time of listing a species as threatened or endangered “to the maximum extent prudent and determinable.” 16 U.S.C. § 1533(a)(3)(A). Critical habitat is defined under Section 3 of the ESA as:

(i) the 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

(ii) specific areas outside the geographical area occupied by the species at the time it was listed . . ., upon a determination by the Secretary that such areas are essential for the conservation of the species.

16 U.S.C. § 1532(5)(A) (emphasis added). Critical habitat designation is not prudent if “identification of critical habitat can be expected to increase the degree of taking or other human activities, if it would not be beneficial to the species, or if it would be redundant.” Fund for Animals v. Babbitt, 903 F. Supp. 96, 117 (D.D.C. 1995), amended by 967 F. Supp. 6 (D.D.C. 1997). Designation is not determinable if there is lack of information to study potential impacts of designation and in assessing the biological need of a species to accurately form the critical habitat. 50 C.F.R. § 424.14. In addition, under Section 4 of the ESA, agencies shall consider the “best scientific data available and after taking into consideration the economic impact and any other relevant impact, of specifying any particular area as critical habitat.” 16 U.S.C. § 1533(b)(2). The agencies may also use a balancing test and exclude areas from critical habitat if “the benefits of such exclusion outweigh the benefits of specifying such area as part of critical habitat.” Id.

Prior to the 1978 Amendments, however, there were no provisions in the ESA that required critical habitat designation concurrent with listing. Critical habitat, therefore, “may be established for those species now listed as threatened or endangered for which no critical habitat has” already been designated. 16 U.S.C. § 1532(5)(B) (emphasis added). As a result, critical habitat designation for pre-1978 Amendment listed species, such as the HGST, is discretionary. Fund for Animals, at 115 n. 8.

Once an area is designated as critical habitat, Section 7(a)(2) of the ESA mandates federal agencies to consult with the Secretary to ensure that any action they authorize, fund, or carry out will not “jeopardize that continued existence of any . . . species or result in the destruction or adverse modification” of the species’ habitat. 16 U.S.C. § 1536(a)(2). “Jeopardize the continued existence of” means

to engage in an action that reasonable would be expected, directly or indirectly, to

reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers or distribution of that species.

50 C.F.R. § 402.02. Although consultation is required even if no designation of critical habitat occurs, the ESA Section 7 consultation process provides significantly different protections. U.S. Fish & Wildlife Service, U.S. Dep’t of the Interior, Critical Habitat: What Is It? (2000). Section 7 consultation requires the agencies to consider effects on species’ critical habitats, while regular consultation only requires consideration of the effect on the species. Id.


Please refer to attached Concise Statement of Material Facts.


A. Scope and Standard of Review under the Administrative Procedures Act.

Because Plaintiffs complaint challenges the final decision on critical habitat designation, judicial review of final agency action is made pursuant to the Administrative Procedures Act (“APA”). 5. U.S.C. § 706. Section 706 of the APA governs judicial review of plaintiffs’ challenge to defendants’ critical habitat designation decisions. Pyramid Lake Paiute Tribe v. U.S. Dep’t of Navy, 898 F.2d 1410, 1414 (9th Cir. 1990). Pursuant to section 706, a court must review agency decisions under the “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law standard.” Id. This standard requires courts to undertake a “thorough, probing, in depth review,” Adler v. Lewis, 675 F.2d 1085, 1091 (9th Cir. 1982), to determine “whether the agency ‘considered the relevant factors and articulated a rational connection between the facts found and the choices made.’” Natural Resources Defense Council v. U.S. Dep’t of Interior, 113 F.3d 1121, 1124 (9th Cir. 1997).

If there is support for the agencies decision, the court must “refrain from assessing the wisdom of the decision unless there has been a clear error of judgment.” Fund for Animals, 903 F. Supp at 105. Additionally, the Court must not substitute its judgment for the agency’s. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). Agencies are given great deference in decision-making and will be “overturned only in the rarest and most compelling of circumstances.” Fund for Animals, at 116. More importantly, a presumption that an agency as acted in accordance with the law exists under the APA. Overton Park, at 415.

B. The Plain Language of the ESA Demonstrates That Designation of Critical Habitat For Pre 1978 Amendment Listed Species Is Discretionary.

The HGST was listed as “threatened” on July 28, 1978. 50 C.F.R. § 17.11. It was listed just months prior to the 1978 Amendments to the ESA that required concurrent critical habitat designation with listing. 16 U.S.C. § 1533(a)(3), see also 50 C.F.R. § 414.12(a). The plain language of the ESA states that critical habitat designation for pre-1978 Amendment listed species is not mandatory. 16 U.S.C. § 1532(5)(B). Section 3 of the ESA plainly states, “[c]ritical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established.” Id. (emphasis added). The HGST is currently listed as “threatened” and does not have any critical habitat established.[2] As a result, ESA Section 4, the provision added to the ESA with the 1978 Amendments mandating critical habitat designation concurrently with listing, does not apply to HGST. Therefore, designating critical habitat for the HGST is discretionary. See Fund For Animals, at 104 n.8

In 1995, the United States District Court for the District of Columbia, in Fund for Animals, interpreted Section 3 of the ESA according to the its plain language and came to the conclusion that critical habitat designation for previously listed species was discretionary. Fund for Animals, at 104. The court stated

The duty to make a critical habitat designation at the same time as the determination is made to list a species was added to the ESA in 1978. Congress excused from this requirement those species that were already listed at the time the Act was amended, specifying that “[c]ritical habitat may be established for [species listed prior to the amendment] . . . for which not critical habitat has heretofore been established.

Id. In addition, the district court added, “[t]he Court agrees with defendants that the plain language of the ESA renders the decision to designate critical habitat a discretionary decision. Fund for Animals, at 115 n. 8.

In Fund for Animals, plaintiffs petitioned FWS for critical habitat designation for the grizzly bear. Grizzly bears in the lower 48 states were listed as threatened in 1975. 40 Fed. Reg. 31,734 (1975). In 1976, FWS proposed a critical habitat for grizzly bears; but in 1979, it withdrew this proposal. Fund for Animals, at 103. In 1991, plaintiff filed a petition to FWS requesting critical habitat designation for the grizzly bear. In 1992, FWS denied the petition even without the opportunity for public comment or conducting extensive scientific review. Id., at 116. FWS denied the petition because it felt that critical habitat designation was not prudent because it would be redundant and would not benefit the species. Id. at 117. Because this was a final agency action, Plaintiffs filed a federal lawsuit seeking judicial review under the APA.

The district court held that FWS “acted in accordance with the APA in denying [plaintiff’s] petition for the designation of critical habitat for the grizzly bear.” Fund for Animals, at 103. In reaching this decision, the court gave great deference to FWS. The court deferred to FWS, even though FWS did not solicit public comment and did not engage in a full scientific review.[3] Furthermore, the court deferred to FWS even though there was evidence that FWS had previously thought that critical habitat designation for the grizzly bear was appropriate. Id.

In the present case, NMFS and FWS solicited public comment and engaged in an extensive scientific investigation before it published its final decision. In addition, the agencies never previously believed that critical habitat was necessary for the HGST. NMFS and FWS did substantially more research on HGST than FWS did for the grizzly bear. NMFS and FWS were dramatically better informed in this case than in Fund for Animals. Therefore, their decision to partially grant and partially deny Plaintiff’s Petition is made after extensive research and the Court should defer to this decision.

1. The ESA gives broad discretion to agencies to designate critical habitat for previously listed species.

Fund for Animals also indicates that there is broad discretion to designate critical habitat for previously listed species. Grizzly bears are “threatened” species. Its population in the lower 48 states has declined from approximately 50,000 in 1800 to 1000 in 1975. Fund for Animals, at 102. It currently occupies two percent of its historical range. Id. Despite almost being eliminated in the lower 48 states, FWS decided against critical habitat designation. FWS did not designate critical habitat, even though it must adhere to the goals and purposes of the ESA. These goals and purposes, set forth in ESA section 2, establish a high standard for the protection of all listed species. 16 U.S.C. § 1531. The court in Fund for Animals, fully informed of the ESA’s purpose, nevertheless granted FWS broad discretion to designate critical habitat for grizzly bears. The court deferred to FWS, despite evidence of the staggering depletion of grizzly bears in the lower 48 states.