A federal judge has ruled that the U. S. Fish and Wildlife Service violated the federal Endangered Species Act (ESA) when it refused to designate critical habitat for 245 species of endangered and threatened Hawaiian plants. The court’s ruling vindicates the claims of the Conservation Council for Hawai’i, the Sierra Club, and the Hawaiian Botanical Society, who, represented by Earthjustice Legal Defense Fund (EAJUS), filed a lawsuit January 29, 1997, challenging FWS’s blanket refusal to protect the habitat these critically imperiled plants need for their continued survival and eventual recovery. The court rejected as unfounded FWS’s fears that designating critical habitat would not be “prudent” for Hawai’i’s plants.

“You cannot conserve endangered plants without first identifying the habitat they need to survive and recover,” said William Sager, Chair of the Conservation Council for Hawai’i-the Hawai’i affiliate of the National Wildlife Federation. “Designating critical habitat does just that and, thus, plays a crucial role in efforts to preserve Hawai’i’s unique native ecosystems.”

The court’s order affirmed that the ESA generally requires the designation of critical habitat at the same time that a species is added to the endangered and threatened species list. Once designated, critical habitat is protected from federal agency action (including actions that federal agencies fund or approve) that would adversely modify or destroy this habitat.

“Setting aside critical habitat helps focus conservation efforts on areas that are vital for native plants,” said Mindy Wilkinson, president of the Hawaiian Botanical Society. “The court’s decision is a major victory for Hawai’i’s plants and reflects the increasing recognition that plants are an essential part of biodiversity worldwide.”

The court noted that, despite the ESA’s mandate to designate critical habitat when species are listed as endangered or threatened, FWS has designated critical habitat for only three of the 264 listed Hawaiian plants and for only 24 of the nearly 700 plants listed nationwide.

“In refusing across-the-board to designate critical habitat for Hawai’i’s plants, the Fish and Wildlife Service blatantly ignored Congress’ command to designate such habitat in all but the most extraordinary cases,” said EAJUS attorney David Henkin. “The court’s ruling sends a strong message to the Service that, in the future, designation of critical habitat must be the rule, not the rare exception.”

“Unfortunately, the Service’s refusal to designate critical habitat is not limited to Hawai’i’s plants, but is a nationwide problem,” said Blake Oshiro of the Sierra Club. “The ruling will benefit dozens of plant and animal species that are candidates for listing under the ESA and that the Service might otherwise deprive of this important protection.”

In 1989, EAJUS (then known as Sierra Club Legal Defense Fund) brought suit on behalf of these same groups against FWS for failing to list hundreds of imperiled Hawaiian plants as endangered or threatened species. In 1990, the suit settled, and, as a result of this settlement, nearly 200 more Hawaiian plants have been listed. However, FWS has refused to designate critical habitat for any of these species or for any of dozens of other plants FWS has listed on its own over the last 13 years.

Meanwhile, the U.S. Senate may weaken protection for endangered and threatened plants if it passes a pending ESA bill. The bill, introduced by Sen. Dirk Kempthorne (R-ID), is awaiting floor time. “The Kempthorne bill would allow the government to avoid protecting plant habitat and open new loopholes for abuse by extractive industries,” said Heather Weiner, an EAJUS policy specialist in Washington, D.C. The Kempthorne bill is unanimously opposed by conservation and scientific organizations nationwide.