On Tuesday, April 16, 2002, the Marianas Audubon Society and Center for Biological Diversity, represented by Earthjustice, formally settled their lawsuit against the Secretary of the Interior and United States Fish and Wildlife Service (Service) over the Service’s refusal to designate critical habitat for six endangered species from Guam and the Northern Mariana Islands: the Mariana crow (Corvus kubaryi), 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). Under the terms of the settlement agreement, the Service acknowledged that its actions violated the federal Endangered Species Act (“ESA”) and agreed to make new critical habitat decisions for these species no later than June 1, 2003. Chief Judge John S. Unpingco of the federal district court on Guam rejected the Government of Guam’s objections to the settlement, stressing that GovGuam’s “desire to present its arguments … is outweighed by the public’s interest in conserving judicial resources by encouraging settlements” and that GovGuam’s claims that the settlement would harm to GovGuam’s interests were largely “speculative” and based on “pure conjecture.”

The Service listed all six 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 six 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 Micronesian kingfisher (sihek) to avoid extinction, and there are plans eventually to reintroduce it to native forest habitat in the northern part of Guam.

“Today, Guam’s forests are silent; their native birds absent,” noted Gretchen Grimm, president of the Marianas Audubon Society. “Since critical habitat will help protect the habitat that is essential for reintroduction and recovery efforts to succeed, this settlement provides new hope that, in the future, our forests will once again ring with the calls of Guam’s native animals.”

“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 and serves primarily an educational role, informing the public as well as local government officials about areas essential to the conservation of imperiled plants and animals. Moreover, since critical habitat does not depend on who owns the land, designation would not prevent the Navy or Air Force from returning “excess” military lands to the Government of Guam or to local families.

“We are pleased that the Service finally saw the error of its ways and agreed to reconsider designating critical habitat for these species,” said David Henkin, attorney with Earthjustice. “Given the significant federal presence in Guam and the Northern Mariana Islands, critical habitat is vital to ensure that the countless federal activities taking place here every day — whether they involve a land transfer, road construction, military training, or granting access for resort development — will not destroy the habitat that these endangered species need to survive and, eventually, to recover.”

The Guam species face threats from a variety of federal actions, including military training; 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.

“Designating and protecting critical habitat makes good scientific sense,” said Peter Galvin, conservation biologist for the Center for Biological Diversity. “After all, what’s the point of spending millions to rescue a species like the Guam Micronesian kingfisher from the brink of extinction if you don’t also protect the habitat it will need to recover?”