Many of the O`ahu plants were added to the endangered species list more than a decade ago, yet, until today, had not received the protection for their recovery habitat that Congress intended they would have from the time of their listing. In 1998, in response to a lawsuit brought by Earthjustice on behalf of the Conservation Council for Hawai'i, the Sierra Club and the Hawaiian Botanical Society, the District of Hawai'i federal court ruled that the U.S. Fish and Wildlife Service (Service) violated its mandatory duty under the federal Endangered Species Act (ESA) to protect the plants' habitat and ordered the Service to make new critical habitat decisions. Once designated, critical habitat protects habitat that is essential to a species' survival and recovery from being destroyed or adversely modified by actions that federal agencies carry out, fund or approve.
Final Designation Excludes Nearly One-Third of Habitat Needed for Recovery
Conservationists are concerned about the Service's decision to exclude from the final designation nearly one-third of the habitat (26,946 acres of the 81,987 acre total) identified as essential to the recovery of O`ahu's imperiled plants. This habitat – all on Army installations – is currently occupied by 53 plants species and must be protected for the reintroduction of another 23 species. The Service excluded these areas based on the Army's Integrated Natural Resources Management Plan, despite the Service's findings in the proposed designation – published only a year ago – that the Army's "current management is not sufficient to address on-going threats to the listed species on these lands" and that "there is currently no guarantee of long-term funding for management actions that are ongoing or future management actions."
Mean-Spirited "Disclaimer" Attached to Rule at Odds with Facts
A "disclaimer" attached to the rule by the Bush administration seeks to undermine all critical habitat designations, an essential element of the ESA that protects ecosystems needed for species to recover. This is the first use of the disclaimer, which the Department of Interior intends to add to all future designations. Ignoring years of court decisions supporting critical habitat, the disclaimer asserts that the protections offered by the ESA's critical habitat provisions have no value in species protection, and claims that agency poverty and workload prevents the Service from creating meaningful, scientifically valid descriptions of the areas that rare species need to survive and recover.
"Contrary to the Service's claims, protecting recovery habitat through critical habitat designation is essential to achieving the ESA's goals," explained David Henkin, staff attorney for Earthjustice in Honolulu. "Congress understood this when it enacted the ESA thirty years ago and declared that one of the law's basic purposes is 'to provide a means whereby the ecosystems on which endangered species and threatened species depend may be conserved.' Protecting habitat is particularly important in Hawai'i, where introduced species and rampant development have devastated native ecosystems, earning Hawai'i the dubious distinction as endangered species capital of the nation."
The disclaimer asserts that the "accelerated schedules" of court ordered designations have left the Service with limited ability to provide for public participation or check for errors before making decisions on critical habitat. In fact, the Hawai'i court gave the Service over five years to prepare critical habitat designations for the O`ahu plants, years longer than the maximum of one year post-listing that the law ordinarily allows and, notably, all the time the Service had told the Hawai'i court it needed to complete the task.
While the ESA requires the Service to accept public comments on a critical habitat proposal for 60 days, in the case of the O`ahu plants, the Service held the comment period open for nearly half a year (180 days, which is three times the legal requirement), including reopening the comment period for 32 days to allow the public to critique the draft economic analysis (which is not required under the ESA). In addition to the legally required public hearing, the Service held two public workshops and countless meetings with scientists, landowners, land managers and stakeholder groups to receive input on the proposal. Paying no attention to these facts, the disclaimer language claims that the court-ordered designation schedule "left the Service with almost no ability to provide for adequate public participation" or to "ensure a defect-free rulemaking process."
"The Fish and Wildlife Service has provided far more opportunities for public participation in designating critical habitat for O`ahu's listed plants than the law requires," countered Henkin. "Five years gave the agency ample time to solicit input from the public, as well as scientific peer reviewers. As a matter of fact, the Service ultimately consulted 17 different reviewers, over five times the number required by the Service's own peer review policy."
Scientific surveys have demonstrated that species with designated critical habitat are improving faster than those without protections for their homes. Weakening the provisions that allow protection not only of the places where rare species now live, but also the places they need to recover, could accelerate the loss of endangered plants and animals.
"The Bush administration gets cranky when they are required to protect habitat for threatened and endangered species. We know the number one reason wildlife becomes endangered is loss of habitat," said Susan Holmes, senior legislative representative in Earthjustice's Washington, D.C. office. "Now the Bush administration claims species don't need a home. Requiring the Fish and Wildlife Service to undermine critical habitat designation is not just mean-spirited, it's bad science."