The Marianas Audubon Society and Center for Biological Diversity, represented by Earthjustice Legal Defense Fund, filed suit in federal district court today against Bruce Babbitt, Secretary of the Interior, and Jamie Rappaport Clark, Director of the United States Fish and Wildlife Service (Service), for failing to designate critical habitat, as required by the federal Endangered Species Act (“ESA”), for seven endangered species from Guam. The seven Guam species are the Mariana crow (Corvus kubaryi), Guam rail (Rallus owstoni), Guam Micronesian kingfisher (Halcyon cinnamomina cinnamomina), Guam broadbill (Myiagra freycineti), Guam bridled white-eye (Zosterops conspicillata conspicillata), Mariana fruit bat (Pteropus mariannus), and little Mariana fruit bat (Pteropus tokudae).
The Service listed all seven Guam species as endangered in 1984, and their continued survival remains in doubt, due largely to predation by the introduced brown tree snake and continued fragmentation and destruction of their native habitat. While all seven species were once common throughout Guam, only two — the Mariana crow (“åga” in Chamoru) and Mariana fruit bat (fanihi) — are now known to occur naturally in the wild on Guam and are restricted to a few distinct forested areas. Captive breeding programs have allowed the Guam rail (ko’ko’) and the Guam Micronesian kingfisher (sihek) to avoid extinction. As part of these efforts, the Guam rail has recently been reintroduced to native forest habitat in the northern part of Guam.
“Now that we are starting to get a handle on how to control the brown tree snake, protecting native habitat becomes all the more important,” said Gretchen Grimm, president of the Marianas Audubon Society. “If we do not protect essential areas through critical habitat designation, wild and reintroduced populations of Guam’s endangered animals will not have any place to live, and the only place we will be able to see these unique parts of Guam’s natural heritage is in the zoo.”
“Critical habitat” consists of those areas that must be managed to permit an endangered species to recover to the level where it is safe, in the foreseeable future, from the danger of extinction. Under the ESA, federal agencies may not carry out, fund, or approve any actions that result in destroying or adversely modifying critical habitat. Since the restrictions associated with critical habitat designation are directed solely at federal agency actions, designation generally has little direct effect on private landowners. However, designating critical habitat also performs an important educational role, informing the public as well as local governments about areas essential to the conservation of imperiled plants and animals.
“Some on Guam have raised concerns that designating critical habitat would prevent the Navy or Air Force from returning “excess” military lands to the Government of Guam or to local families, but that’s simply not true,” said David Henkin, attorney with Earthjustice Legal Defense Fund. “Designating critical habitat has nothing to do with who owns the land. It simply ensures that any federal action — whether it involves a land transfer, road construction, or military training — will not result in adverse modification or destruction of habitat that Guam’s endangered species need to survive and, eventually, to recover.”
The Guam species face threats from a variety of federal actions, including military training exercises; the clearing and fragmentation of forest habitat for roads, warehouses or other construction projects; the construction of resorts, golf courses, and other recreational facilities where federal permits are required; and the release or exchange of excess military property without adequate assurances for habitat protection.
“Without critical habitat, we risk losing these magnificent species forever,” said Peter Galvin, conservation biologist for the Center for Biological Diversity. “We have an obligation to protect this essential habitat, so that future generations will have the chance to study and enjoy these unique animals in the wild, not just in picture books.”
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ANSWERS TO QUESTIONS ABOUT CRITICAL HABITAT AND THE ENDANGERED SPECIES ACT
1. What is the Endangered Species Act?
The federal Endangered Species Act (“ESA”) is the basic federal law that protects endangered and threatened species. Among other things, it prohibits federal agencies from authorizing, funding or carrying out any action that destroys or adversely modifies the “critical habitat” of any threatened or endangered species. This prohibition is necessary to achieve one of the central goals of the ESA: the preservation of the ecosystems upon which endangered and threatened species depend for their continued survival and recovery.
2. What is critical habitat?
The ESA defines “critical habitat” as those geographical areas: (1) that are essential for bringing an endangered or threatened species to the point where it no longer needs the legal protections of the ESA; and (2) which may require special management considerations or protection. In other words, the critical habitat consists of those areas that must be managed to permit an imperiled species to recover to a level where it is safe, for the foreseeable future, from the danger of extinction.
3. How is critical habitat determined?
Under the ESA, the Secretary of the Interior (“Secretary”) has the responsibility for identifying those areas that are critical habitat for Guam’s endangered and threatened plants and wildlife. Generally speaking, the ESA requires that the Secretary designate this critical habitat at the same time that the species is listed as endangered or threatened. The Secretary has delegated this task to the U.S. Fish and Wildlife Service (“Service”).
In determining the critical habitat for a species, the Service is required to use the best scientific data available. In addition, before designating any particular area as critical habitat, the Service must consider the economic impact, and any other relevant impact, associated with this designation. If the costs associated with designating an area as critical habitat outweigh the benefits, the Service may exclude that area from critical habitat, unless excluding the area would result in the extinction of the species in question.
4. How will Guam’s endangered species benefit from critical habitat designation?
Designating critical habitat will better protect Guam’s endangered species. Merely placing a bird or bat on the endangered species list does not protect the habitat that the species needs for its eventual recovery. Congress recognized this, and, in the ESA, imposed two separate and distinct duties on federal agencies for the benefit of listed species: (1) each federal agency must insure that any action it authorizes, funds or carries out will not push any endangered species closer to extinction; and (2) each federal agency must insure that its actions will not destroy or adversely modify the critical habitat of such species. Without critical habitat, Guam’s critically imperiled species do not enjoy the second of these two vital protections that Congress intended them to have.
Where critical habitat has been designated, federal agencies must consult the U.S. Fish and Wildlife Service before undertaking any action that might adversely affect this critical habitat. The consultation process forces federal agencies to explore more environmentally-friendly alternatives to their proposed actions and to devise mitigation measures that will avoid negative impacts on critical habitat. The end result is federal action that protects the habitat on which Guam’s imperiled wildlife depends for its recovery.
5. How does critical habitat designation affect private land owners?
Critical habitat designation generally has little impact on private land owners since it is directed solely at federal agency action. Even without critical habitat designation, federal law currently prohibits private land owners from harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting any endangered or threatened animal on their land, without a permit from the Service. This prohibition extends to significant habitat modification or degradation where it actually kills or injures endangered wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.
Designating critical habitat on private land does not turn it into a wildlife refuge. The landowner is free to do anything that was permitted before critical habitat was designated, unless the activity in question requires a federal agency’s participation, funding or approval. In those limited cases, the private land owner can still carry out the proposed activity as long as it would not adversely modify or destroy the critical habitat, reducing its value for the recovery of the endangered species.
6. Will critical habitat designation prevent the Navy or Air Force from transferring “excess” military lands to GovGuam or private landowners?
No. Critical habitat designation is completely independent of land ownership. If lands that the Navy or Air Force currently control are designated as critical habitat, those lands can still be transferred to either GovGuam or to private landowners when the lands are no longer needed for military purposes. All that critical habitat designation means is that the Navy or Air Force would have to ensure that any transfer is not likely to result in the adverse modification or destruction of critical habitat.
7. Would designating critical habitat at Ritidian Point mean that Guam families can no longer use that area for recreation?
No. The ESA does not prohibit all human use of national wildlife refuge lands designated as critical habitat. Rather, it prohibits only those activities — such as the clearing of forest — likely to result in the adverse modification or destruction of critical habitat. When the Service proposed critical habitat designation for six Guam species in 1991, it expressly found that this designation would not significantly affect fishing, picnicking and other recreational activities that Guam families currently enjoy.
8. Can the public participate in the process for designating critical habitat?
Yes. At least 90 days before making a final decision on the designation of critical habitat for a species, the Service must publicize the proposed regulation in the Federal Register and in a newspaper of general circulation in each area where the species is believed to occur. The public is then free to request a public hearing on the proposed critical habitat designation. This hearing must take place within 45 days after the Federal Register notice is published.