Aina Nui Corporation v. Jewell et al

Filing 47

ORDER DENYING PLAINTIFF AINA NUI CORPORATION'S 32 MOTION FOR SUMMARY JUDGMENT AND GRANTING FEDERAL DEFENDANTS' 35 CROSS-MOTION FOR SUMMARY JUDGMENT. Signed by JUDGE DERRICK K. WATSON on 9/30/2014. (ecs, ) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

CIVIL NO. 13-00438 DKW-RLP

AINA NUI CORPORATION,
Plaintiff,
vs.
SALLY JEWELL, in her official
capacity as Secretary of the United
States Department of the Interior;
UNITED STATES FISH AND
WILDLIFE SERVICE; DANIEL
ASHE, in his official capacity as
Director of the U.S. FWS,

ORDER DENYING PLAINTIFF
AINA NUI CORPORATION’S
MOTION FOR SUMMARY
JUDGMENT AND GRANTING
FEDERAL DEFENDANTS’
CROSS-MOTION FOR SUMMARY
JUDGMENT

Defendants.

ORDER DENYING PLAINTIFF AINA NUI CORPORATION’S MOTION
FOR SUMMARY JUDGMENT AND GRANTING FEDERAL
DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Aina Nui Corporation (“ANC”) challenges the United States Fish and
Wildlife Service’s (the “Service” or “FWS”) designation of a portion of ANC’s land
holdings on Oahu as critical habitat for species listed as threatened and endangered
pursuant to the Endangered Species Act, 16 U.S.C. §1531, et seq. (“ESA”). ANC

1

contends that the designation violates the ESA, Administrative Procedure Act, 5
U.S.C. §551, et seq. (“APA”), and National Environmental Policy Act, 42 U.S.C.
§4321, et seq. (“NEPA”).
Because the Service promulgated the Final Rule in compliance with public
notice and comment requirements, designated critical habitat utilizing an ecosystem
approach that is consistent with its statutory mandate, and properly determined that a
portion of ANC’s land holdings is essential to the conservation of species identified
in the Final Rule, and because the Service’s critical habitat designation is not subject
to NEPA review as a matter of law, the Court DENIES ANC’s Motion for Summary
Judgment and GRANTS Federal Defendants’ Cross-Motion for Summary
Judgment.
BACKGROUND
I.

Critical Habitat Designation Process
A.

ESA Overview

Section 4 of the ESA requires the Service to determine when a species is
“threatened” or “endangered,” designations that trigger various statutory and
regulatory protections. 16 U.S.C. §§ 1533, 1538. When the Service determines
that a particular species is threatened or endangered, Section 4 also requires the

2

Service to designate a “critical habitat” for the species. 16 U.S.C. § 1533(a)(3).
Section 3 defines “critical habitat” to include:
(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 is 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). After identifying the geographic area that meets this
two-pronged definition, the Service may nonetheless exclude certain portions of that
area “if [it] determines that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless . . . the failure to designate
such area as critical habitat will result in the extinction of the species concerned.”
15 U.S.C. § 1533(b)(2).
In short, critical habitat designation generally involves three steps:
(1) identifying those areas occupied by the species that contain
the features essential to the species’ survival, (2) determining if
any areas unoccupied by the species are essential for the
conservation of the species, and then (3) excluding from these
two areas any portions where the benefits of exclusion outweigh
the benefits of inclusion, so long as such exclusion will not result
in the species’ extinction.

3

Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 2011 WL 73494, at *2
(C.D. Cal. Jan. 8, 2011).
Critical habitat is further governed by regulations that compel the Service to
“focus on the principal biological or physical constituent elements within the
defined area that are essential to the conservation of the species.” 50 C.F.R.
§ 424.12(b). These “principal constituent elements” (“PCEs”) “may include, but
are not limited to, the following: roost sites, nesting grounds, spawning sites, feeding
sites, seasonal wetland or dryland, water quality or quantity, host species or plant
pollinator, geological formation, vegetation type, tide, and specific soil types.” Id.
On September 18, 2012, the Service designated 42,804 acres on Oahu as
critical habitat for 124 threatened and endangered species, including a plant known
as the ‘Ewa Plains ‘akoko. See 77 Fed. Reg. 57648 (Sept. 18, 2012) (“Final Rule”).
The designation includes 96 acres owned by ANC (the “Property”) within the
Kapolei West project (“Project”). The Final Rule designates “Lowland Dry Unit 8”
(“LDU-8”), consisting largely of ANC’s Property, as critical habitat for 16 plant
species, including the ‘akoko. According to ANC, the LDU-8 critical habitat
designation will significantly impact its planned development of 559
resort-residential homes, 223 affordable homes, and half of an 18-hole golf course.
ANC Mot. for Summary Judgment (Dkt. No. 32), at 1. ANC asks the Court to
4

invalidate and enjoin the Service from enforcing the Final Rule, at least to the extent
it affects LDU-8, and to remand the Final Rule for designation of critical habitat in
accordance with federal law.
B.

Critical Habitat Designation and Rulemaking History

The Service listed the ‘akoko as endangered in 1982. Notwithstanding this
designation, the Service did not identify critical habitat for the ‘akoko at that time
because the essential habitat elements could not be identified in the greatly altered
ecosystem of the ‘Ewa Plain. 47 Fed. Reg. 36846-48 (Aug. 24, 1982). The 1982
listing provided, however, that should further study identify areas deemed essential
to conservation, they might be designated as critical habitat. By 1994, such further
study included the Service’s draft recovery plan for the ‘akoko (“1994 Recovery
Plan”). AR 26145-26232. At that time, there were only four known populations
of ‘akoko on the ‘Ewa Plain. AR 26166. Human-induced habitat loss,
competition from non-native plant species, and fire had been the major causes of
decline. AR 26176-79.
The 1994 Recovery Plan specified that each of the four existing ‘Ewa Plains
populations should be restored to greater numbers, with the following targets:
Population 1, 5,000 plants; Populations 2 and 4, a minimum of 1,000 reproductive
plants; and Population 3, a minimum of 1,000 plants. AR 26193, 26200-04. The
5

1994 Recovery Plan also established the following criteria for downgrading the
‘akoko’s listing from endangered to threatened: at least three self-reproducing
populations in each location with a minimum of 1,000 reproductive plants, with a
land area sufficient to provide a buffer of thirty to fifty meters around the expanded
population, in addition to maintenance of the 30,000 plants on the Island of
Moloka‘i. AR 26191.
With these targets in mind, the Service began its rulemaking for critical
habitat designation in early 2008. AR 8633, 8637. On August 2, 2011, the Service
published a notice of proposed rulemaking to list 23 species on the island of Oahu as
endangered, and to designate or revise critical habitat for those 23 species as well as
for 101 previously listed plant species, including ‘akoko and Achyranthes. 76 Fed.
Reg. 46362 (Aug. 2, 2011) (“Proposed Rule”). The Service proposed LDU-8 as
critical habitat for ‘akoko, Achyranthes, and 14 other species. The Proposed Rule
stated that LDU-8 provided the PCEs necessary for the reestablishment of wild
populations of all 16 species. The PCEs were defined by elevation, precipitation,
substrate, and associated native plants, in addition to species-specific requirements,
such as coral outcrop substrate for ‘akoko. Id. at 46409, 46415. To identify
critical habitat, the Proposed Rule utilized what the Service referred to as the
“ecosystem approach,” whereby, in addition to the features essential to the
6

conservation of each species, the Service determined “that the conservation of each
depends, at least in part, on the successful functioning of the physical or biological
features of the commonly shared ecosystem.” Id. at 46409, 46365.
The initial public comment period closed on October 3, 2011. 76 Fed. Reg.
46362. ANC and the affiliated James Campbell Company LLC submitted
comments on the Proposed Rule, asserting that land within LDU-8 should not be
designated as critical habitat because it was not suitable for the listed species, lacked
the necessary PCEs, and was not essential for the conservation of the listed species.
AR 9047. The Service also received comments in opposition to the designation of
LDU-8 from State agencies, but did not receive comments specifically supporting
designation of LDU-8. See AR 9011-9259. The Service held a meeting with
Steve Kelly, a James Campbell Company representative, on October 14, 2011, to
discuss the company’s request to re-evaluate the designation of LDU-8. AR 9011.
The Service also conducted a site visit of LDU-8 with Kelly and other James
Campbell Company representatives in November 2011. AR 3007-15, 4759.
On April 12, 2012, the Service made available the draft economic analysis
(“DEA”) that evaluated the economic effects of the proposed designation, proposed
the removal of 185 acres from the area previously earmarked as critical habitat from
within LDU-8, and reopened the public comment period. 77 Fed. Reg. 21936
7

(Apr. 12, 2012). The Service specifically sought comment on whether PCEs were
present in LDU-8, whether all of LDU-8 was essential for the conservation of the
species, and the possible economic impacts of the designation of LDU-8 as critical
habitat. AR 21937. The Service also requested information on any planned land
use activities that might require a federal permit, license, funding, or other federal
assistance. 77 Fed. Reg. at 21942.
The second comment period closed on May 14, 2012. 77 Fed. Reg. 21936.
The Service received 19 comments on the DEA, including comments from ANC and
its affiliates, criticizing the methodology of the economic analysis. AR 11643-53.
ANC also objected that the Service’s proposed acreage reduction from LDU-8 did
not go far enough in that ANC’s remaining 96 LDU-8 acres still did not meet the
standards for critical habitat. AR 11638; AR 11643-53.
In June 2012, the Service conducted another site visit to LDU-8 with ANC
and James Campbell Company representatives. AR 02991a-3039a. Following the
visit, the Service reaffirmed its prior finding that LDU-8 possesses the physical and
biological features of the lowland dry ecosystem as well as the specific coral outcrop
PCE for ‘akoko. Id.; AR 03040a-03088a (“June 2012 Site Visit
Report”). The Service did not make the June 2012 Site Visit Report available for
public review or comment before issuance.
8

In June 2012, the Service also completed its “2012 Recovery Needs and
Strategy for Chamaesyce skottsbergii var. skottsbergii” (“Recovery Strategy”), also
referred to as a “white paper.” AR 29528. The Recovery Strategy specifies the
number of populations, number of plants within each population, and land area
required for each population to achieve recovery of ‘akoko. As with the June 2012
Site Visit Report, the Recovery Strategy was not made available for public review or
comment during the rulemaking process.
C.

Final Rule

The Service finalized its economic analysis in July 2012 (“FEA”). AR
1204-99. Because it intended to remove considerable acreage from the area
previously earmarked as critical habitat from within LDU-8, lost property value
estimates required reassessment. AR 1243. Using information provided in
ANC’s May 2012 comment letter, as well as real property appraisal information
from the City and County of Honolulu, the Service calculated ANC’s parcels in the
revised unit to have a current land value assessment of $32.3 million. AR 1264.
The Service assumed that development would be precluded on the portion of the
parcels designated as critical habitat and calculated the property value loss at just
over $7.6 million. AR 1277, 1280. The estimated administrative costs for a

9

Section 7 consultation for a Federal agency or applicant remained unchanged from
the DEA. AR 1276.
On September 18, 2012, the Service published the Final Rule, listing 23
species as endangered, designating critical habitat for two previously-listed species,
and revising the critical habitat designation for 99 other Oahu species. 77 Fed. Reg.
57648. A total of 42,804 acres were designated as critical habitat, after 307 acres
were removed from the proposed designation, including 193 acres removed from
LDU-8. Id. at 57714. According to the Service, it solicited peer review from 13
experts regarding the Oahu plants and animals covered by the Final Rule. Id. at
57656. Four experts responded, and generally concurred with the Service’s
methods and conclusions, with none criticizing either the “ecosystem approach,” the
designation of ‘akoko, or the designation of critical habitat within LDU-8. Id. The
Final Rule concluded that the Service’s economic analysis “did not identify any
disproportionate costs that are likely to result from the designation” and therefore
the Service declined to exclude any part of LDU-8 (or other units) from critical
habitat based on economic impacts. Id. at 57740.
The Final Rule discussed the two LDU-8 site visits with ANC affiliates in
November 2011 and June 2012, through which the Service verified the existence of
the lowland dry ecosystem PCEs and the PCE of coral outcrop substrate for the
10

‘akoko. Id. at 57714. The Service found these features essential to the
conservation of the species in this location based on the need to reestablish ‘akoko
where it historically occurred. Id. According to the Service, the species requires
seven to eight populations containing a total of 10,000 mature individuals with at
least 1,000 mature individuals per population in order to recover. Id. The Final
Rule notes that, including LDU-8, only four sites on the ‘Ewa Plain remain with the
essential features that have not already been modified by construction, development,
or excavation activities; were large enough to provide habitat for at least one
self-sustaining population; and provided adequate distribution across the historical
range of the species. The Final Rule further states that, although LDU-8 is
currently unoccupied by the species, limiting critical habitat to currently-occupied
areas would not ensure the conservation of the ‘akoko. As to the remaining species,
the Service concluded that, even though LDU-8 was not occupied by those species at
the time of their listings, the unit is essential for their conservation because of the
need to reestablish wild populations in order to bolster the small numbers of
individuals or low population sizes. Id.
The Final Rule responds specifically to public comments opposed to the
inclusion of LDU-8:

11

Following the [November 2011] field visit, it was determined
that approximately 193 acres of the 292 acres proposed were too
degraded to support akoko or to be functionally restored to
support the essential features and habitat for akoko. It was
further determined during that field visit and a subsequent field
visit in June 2012, that 99 acres (40 ha) contained the features
essential to the conservation of akoko and could be adequately
restored to allow for a functioning population of akoko if
re-established.
....
Based on the revisions the final rule makes to Oahu—Lowland
Dry—Unit 8, many of the specific lands that commenters were
concerned with were removed from the designation due to the
lack of features or because they were so degraded.
Id. at 57660. ANC notes that 96 of the remaining 99 LDU-8 acres designated as
critical habitat are within its Project development footprint; the remaining 3 acres
are an active historic railroad right of way owned by the State. AR 35577.
In response to public comments assailing the DEA, and specifically the
assumption that a federal nexus may not exist, the Final Rule explains in part:
to evaluate potential impacts from the designation given the
uncertainty of whether there may be a Federal nexus and how
many specific consultations there may be, we evaluated a range
in the DEA and our final rule. At one end of the range, we
assume that there will be no Federal nexus. In this case,
because there is no regulatory effect under the Act for a
designation of critical habitat absent a Federal nexus, we assume
there will be no impact from the designation. This constitutes
the lower bound that is identified in the DEA, and we still believe
this scenario could occur. At the other end of the range, where a
12

Federal nexus is assumed, we also assume that the consultation
resulting from the designation of critical habitat would take into
consideration the entire master planned project based on past
comparable examples. For example, one property owner
(James Campbell Company LLC) commented that the entire 107
acres (43 ha) being designated within Oahu—Lowland
Dry—Unit 8 fall within the Kapolei West project, which is slated
for residential and mixed-use development, with development
rights vested by several public approval processes and County
ordinance. They also commented that the land use entitlement
process for Kapolei West began in the 1980’s and was assessed
in an Environmental Impact Statement prepared under Hawaii
Revised Statutes Chapter 343 (Kapolei West Expansion Area
Final EIS, June 2005; James Campbell Company LLC letter
dated May 12, 2012). Because the consultation is anticipated to
be for the entire master planned community, then the specific
number of parcels may not be significant. The final economic
analysis reexamined the potential upper-bound of economic
costs, including administrative costs to the Service, Federal
agencies, and third parties. The estimated combined
administrative costs in occupied and unoccupied critical habitat
is $145,000 over a 20-year period ($94,178 using a 7 percent
discount rate, $117,075 using a 3 percent discount rate). The
total administrative costs (i.e., costs related to section 7
consultation) in occupied areas are estimated to be $105,000
over a 20-year period (or $54,178 using a 7 percent discount
rate—$77,075 using a 3 percent discount rate). Combined
annualized costs over this period are $8,776 using a 7 percent
discount rate, or $7,000 using a 3 percent discount rate (Service
2012, Table ES–12).
77 Fed. Reg. 57661.
The Final Rule also responds to criticism that the PCEs for ecosystems are
arbitrary and capricious:

13

We consider the PCEs to be the specific compositional elements
of physical and biological features that are essential to the
conservation of the species. This final rule identifies the
appropriate PCEs sufficient to support the life history processes
for each species within the ecosystems in which they occur, and
reflects a distribution that we believe is essential to the species’
recovery needs within those ecosystems. The ecosystems’
features include the appropriate microclimatic conditions for
germination and growth of the plants (e.g., light availability, soil
nutrients, hydrologic regime, and temperature) and space within
the appropriate habitats for population growth and expansion, as
well as to maintain the historical geographical and ecological
distribution of each species. The PCEs are defined by
elevation, annual levels of precipitation, substrate type and
slope, and the potential to maintain characteristic native plant
genera in the canopy, subcanopy, and understory levels of the
vegetative community.
Id. at 57660.
II.

Litigation Overview
Following publication of the Final Rule, ANC issued, on May 13, 2013, a

60-day ESA citizen suit notice. The Service responded to the notice by letter dated
July 12, 2013, declining to either withdraw or revise the Final Rule.
On August 30, 2013, ANC filed the instant action generally asserting that the
Court should set aside the Final Rule pursuant to the APA, 5 U.S.C. §706(2)(A).
The complaint alleges six causes of action: (1) failure to allow public review and
comment required by both the APA, 5 U.S.C. §§ 553, 706, and the ESA, 16 U.S.C. §
1533; (2) failure of PCEs to identify the listed species’ biological needs, as required
14

by the ESA, 16 U.S.C. §§ 1532 and 1533, and 50 C.F.R.§ 424.12; (3) designation of
critical habitat that lacks the PCEs for listed species, in violation of the ESA, 16
U.S.C. §§ 1532 and 1533, and 50 C.F.R.§ 424.12; (4) designation of areas as critical
habitat that are not essential to the conservation of the species, in violation of the
ESA, 16 U.S.C. §§ 1532 and 1533, and 50 C.F.R.§ 424.12; (5) inadequate
consideration of economic impacts, in violation of the ESA, 16 U.S.C. § 1533; and
(6) failure to comply with NEPA, 42 U.S.C. § 4332.
In its motion for summary judgment, ANC argues that the Service: violated
the APA and ESA by withholding key documents from public review; violated the
ESA by utilizing an “ecosystem approach”; unlawfully designated the Property as
critical habitat without the PCEs for listed species; violated the ESA by failing to
consider all economic impacts of designating LDU-8; and violated NEPA by failing
to analyze the significant environmental effects of the Final Rule. In its
cross-motion, the Service asserts that: ANC lacks prudential standing for its NEPA
claim and that the claim is without merit; the development of the Final Rule
comports with public review requirements; and the Final Rule complies with the
ESA because LDU-8 has the lowland dry ecosystem PCEs and coral outcrop

15

substrate essential to the conservation of the ‘akoko and the 15 other listed species,
and the Service correctly considered the economic impact of designation.1
STANDARD OF REVIEW
Where an agency has taken final action, a court may set aside that action
under § 706(2)(A) of the APA if it was “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review under
the arbitrary and capricious standard is narrow, and courts give deference to an
agency’s construction of a statutory provision it is charged with administering. Am.
Fed’n of Gov’t Emps. v. Fed. Labor Relations Auth., 204 F.3d 1272, 1274-75 (9th
Cir. 2000). Courts must determine whether the agency’s decision was based on a
consideration of the relevant factors or whether there has been a clear error of
judgment. Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1177 (9th
Cir. 2000). The reviewing court’s inquiry, though narrow, must be “‘searching and
careful.’” Ninilchik Traditional Council v. United States, 227 F.3d 1186, 1194 (9th
Cir. 2000) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
416 (1971)).

1

The Service initially argued in its cross-motion that ANC lacked standing to bring its ESA claims,
but withdrew that argument at the hearing on the motions. Accordingly, the Court does not reach
this issue.

16

Review of agency actions is “highly deferential,” “presume[s] the agency
action to be valid,” and requires that the Court affirm the agency action “if a
reasonable basis exists for its decision.” Nw. Ecosystem Alliance v. U.S. Fish and
Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (citation omitted); Occidental
Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985) (A court’s function is limited to
determining whether the evidence in the record “permitted the agency to make the
decision that it did.”). The Court is not to substitute its judgment for that of the
agency, and deference to the agency’s technical expertise and experience is
particularly important with respect to questions involving scientific matters. Id.;
see also Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993)
(citation omitted). However, “the presumption of agency expertise may be rebutted
if the decisions, even though based on scientific expertise, are not reasoned.”
Greenpeace v. National Marine Fisheries Serv., 80 F. Supp. 2d 1137, 1147 (W.D.
Wash. 2000). ANC, the party challenging the agency’s action here, bears the
burden of proof. WildEarth Guardians v. Salazar, 741 F. Supp. 2d 89, 97 (D.D.C.
2010) (citation omitted).

17

DISCUSSION
The Court begins its analysis by addressing ANC’s procedural arguments
relating to the record, and then turns to the substance of ANC’s ESA and NEPA
claims.
I.

The Service Did Not Violate the APA or ESA by Withholding
Documents from Public Review
The APA generally requires an agency to make available to the public, for

review and comment, the materials on which it relies in making a final decision. 5
U.S.C. § 553(b)-(c); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1401-02
(9th Cir. 1995). If an agency adds critical new information to the record after the
close of a public comment period, it must reopen the comment period. Id. “[A]n
agency, without reopening the comment period, may use supplementary data,
unavailable during the notice and comment period, that expands on and confirms
information contained in the proposed rulemaking and addresses alleged
deficiencies in the pre-existing data, so long as no prejudice is shown.” Id. at 1402
(citation omitted). Courts determine “the adequacy of the agency’s notice and
comment procedure, without deferring to an agency’s own opinion of the . . .
opportunities it provided.” Kern County Farm Bureau v. Allen, 450 F.3d 1072,
1076 (9th Cir. 2006).

18

ANC contends that the Service improperly withheld from public review and
comment the 2012 Recovery Strategy for ‘akoko and the June 2012 Site Visit
Report. The Court addresses each document below.
A.

2012 Recovery Strategy

The draft 1994 Recovery Plan for ‘akoko required three populations of ‘akoko
on Oahu, with at least 1,000 plants per population. AR 26150, 26191. ANC
asserts that, under the 1994 Recovery Plan, LDU-8 would not have been “essential”
for the conservation of ‘akoko because LDU-9, -10 and -11 together could hold five
or six populations, exceeding the 1994 Recovery Plan’s requirements. AR 29531.
Under the 2012 Recovery Strategy, however, ten populations of 1,000 plants are
required for recovery, leading to the conclusion that “all of the proposed critical
habitat [must be] maintained,” including LDU-8. The Recovery Strategy
concludes that the critical habitat proposed for designation would allow for seven to
eight populations with a total of at least 10,000 plants, which would suffice for
recovery if “all of the proposed critical habitat is maintained.” AR 29531.
1. The Recovery Strategy Does Not Contain Critical New
Information
ANC argues that the Recovery Strategy presented critical information that
altered the justifications and conclusions the Service relied upon to support the Final

19

Rule, and that the Service was therefore required to permit public comment on the
document. Among other things, ANC maintains that the need for 33 acres per
‘akoko population is first set forth in the Recovery Strategy.
The Service contends that it was not required to reopen the public comment
period because the Recovery Strategy’s expanded discussion of the importance of
LDU-8 is a direct response to comments submitted by ANC itself. It also argues
that the Recovery Strategy is a synthesis of existing data, which enabled the Service
to respond more fully to concerns and confirm prior determinations. It asserts that
the Final Rule simply provides a more detailed discussion of the population levels
needed to achieve recovery and the habitat and space necessary to achieve this
expansion, and that the need to re-establish additional populations in order to
conserve and recover the species is not a new rationale, but was set forth in the
Proposed Rule specifically with respect to LDU-8. See 76 Fed. Reg. at 46445.
According to the Service, because the Recovery Strategy merely responded to
ANC’s public comments that a smaller critical habitat designation could suffice
(AR 11639) and confirmed the information on which the proposed rule was based,
its publication does not compel the reopening of still more public comment.
Rybachek v. EPA, 904 F.2d 1276, 1286 (9th Cir. 1990).

20

The question for the Court is whether the Recovery Strategy contains
additional information that was not merely important but “critical” to the agency’s
determination. The Service is not obligated to reopen the comment period unless
the information is critical. Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392,
1403 (9th Cir. 1995) (citing Cmty. Nutrition Inst. v. Block, 749 F.2d 50, 57-58 (D.C.
Cir. 1984)); Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1074 (9th Cir.
2006). After the comment period ends, the agency can add information that
responds to comments on the proposed rulemaking, or “supplementary” data that
“‘expand[s] on and confirm[s]’ information contained in the proposed rule[] and
addresses ‘alleged deficiencies’ in the pre-existing data,” provided no prejudice is
shown. Id. at 1402.
In Idaho Farm Bureau Federation, the agency relied upon a USGS study that
was not available to the public at the time that the Service made a final listing
decision. The Ninth Circuit concluded that the USGS report was not
“supplementary data,” but was instead central to the agency’s decision to list the
Springs Snail as an endangered species. This was so because the report “provided
the only scientific information on the cause of decline in spring flows. The USGS
study provided unique information that was not duplicated in other reports.” 58
F.3d at 1403. The Ninth Circuit required the Service to “provide an opportunity for
21

public comment on the final USGS report and reconsider the listing decision
thereafter.” Id. at 1404.
The Ninth Circuit reached a different conclusion in Kern County Farm
Bureau, holding that three post-comment period studies were not critical to the
listing decision. “Unlike the post-comment study in Idaho Farm Bureau
Federation, the new materials do not provide the sole, essential support for the
listing decision.” 450 F.3d at 1079. The Kern County Farm Bureau studies
“confirm and expand on existing data, providing additional grounds,” and “did not
alter the justifications or conclusions that were vital to the listing decision.” Id.
Upon careful review of the record in the instant matter, the Court concludes
that the 2012 Recovery Strategy cited in the Final Rule did not add critical new
information to the record after the close of the public comment period. The Final
Rule references the Recovery Strategy in its discussion of LDU-8, addressing
population distribution needs beyond the currently-occupied habitat:
The numbers of individuals and numbers of populations
calculated for the 4 Lowland Dry units for akoko was based on
our analysis (white paper) “Recovery Needs and Strategy for
Akoko,” June 20, 2012. This analysis incorporated data from
the Recovery Plan for C. skottsbergii var. skottsbergii and
Achyranthes splendens var. rotundata (1993), surveys/species
reports from 1979, 1981, 1984, and 2012, the Revised Recovery
Objective Guidelines as determined by the Hawaii and Pacific
Plants Recovery Coordinating Committee (HPPRCC) 2011, and
22

plant genetics information from Guerrant et al. (2004, pp. 419–
441) and Neel and Cummings (2003).
77 Fed. Reg. 57714. The other studies referenced above, upon which the Recovery
Strategy is based, are not new and were previously available.
For example, the Recovery Strategy applies the HPPRCC 2011 recovery
criteria of 10 populations of 1,000 individuals. AR 6997. The Service had
previously calculated the acreage necessary to achieve recovery, applying both a
1981 report and the HPPRCC 2011 recovery guidelines. AR 6997-98. The
Recovery Strategy therefore represents an analysis of data that existed prior to the
Proposed Rule and was available for public comment. Unlike the USGS report
relied upon in Idaho Farm Bureau Federation, the Recovery Strategy does not
“provide the sole, essential support for the listing decision.” Kern County Farm
Bureau, 450 F.3d at 1079. Nor does it provide “unique information that was not
duplicated in other reports.” Idaho Farm Bureau Federation, 58 F.3d at 1403.
Finally, the “data did not alter the underlying reasons for the agency’s conclusions.”
Kern County Farm Bureau, 450 F.3d at 1079-80. Rather, the Recovery Strategy is
referenced in the Final Rule as a response to ANC and its affiliates’ public
comments that a smaller critical habitat designation was appropriate, and expands
the Proposed Rule’s discussion of the importance of LDU-8. “Nothing prohibits

23

[an a]gency from adding supporting documentation for a final rule in response to
public comments.” Rybachek, 904 F.2d at 1286.
In short, the Service was not required to reopen the comment period based on
the Recovery Strategy.
2. The Recovery Strategy Does Not Revise The 1994
Recovery Plan
The ESA requires that an agency “prior to final approval of a new or revised
recovery plan, provide public notice and an opportunity for public review and
comment on such plan.” 16 U.S.C. §1533(f)(4). ANC argues that the Service
promulgated the Recovery Strategy in violation of this statutory obligation.
According to ANC, the Recovery Strategy represents a revision of the draft 1994
Recovery Plan because it provides new criteria for ‘akoko population size, area, and
spatial distribution that replace those in the draft 1994 Recovery Plan. Yet no
public notice and comment was made available.
There is no dispute that the critical habitat designation process is distinct from
recovery planning requirements. Cf. 16 U.S.C. §§ 1533(a)(3) and (b)(2) (critical
habitat designation) with 16 U.S.C. §1533(f)(1) (requirements for recovery plan).
That is, a recovery plan is not required as part of the critical habitat designation
process. See 16 U.S.C. §1533(f)(1) (“The Secretary shall develop and implement

24

plans (hereinafter in this subsection referred to as ‘recovery plans’) for the
conservation and survival of endangered species and threatened species listed
pursuant to this section, unless he finds that such a plan will not promote the
conservation of the species.”); see also Friends of Blackwater v. Salazar, 691 F.3d
428, 433 (D.C. Cir. 2012) (“Rather, § 4(f)(1)(B)(ii) states simply that the criteria in
the recovery plan should be those “which, when met, would result in a
determination, in accordance with the provisions of this section, that the species be
removed from the list.’”). The Final Rule itself refers to the Recovery Strategy as a
“white paper,” not as a recovery plan. The Recovery Strategy here is not like a
recovery plan in that it does not contain the statutorily required criteria. See 16
U.S.C. §1533(f)(1).
To the extent ANC argues the Recovery Strategy is a de facto revision of the
1994 Recovery Plan, the argument fails. For example, the finding in the Recovery
Strategy that conservation can be achieved through seven to eight “management
units,” some larger than 1,000 individuals, is consistent with, not a revision of,
preexisting analyses, including the draft 1994 Recovery Plan specification that the
four then-existing ‘Ewa Plains populations be restored to a total of 8,000
individuals. Cf. AR 6997, 16328, 29530, 26193, 26200-04.

25

B.

Objections to June 2012 Site Visit Report

ANC argues that the June 2012 Site Visit Report provided critical new
information that led the Service to remove significant acreage from LDU-8. See 77
Fed. Reg. 57714. As with the Recovery Strategy, the Court concludes that the
Service was not required to reopen the public comment period. See Kern County
Farm Bureau, 450 F.3d at 1079-80.
The record does not reveal any information in the June 2012 Site Visit Report
that was not previously available for public comment or that represented critical new
information. Although ANC contends that the June 2012 site visit provided the
essential “new” factual information that the Service relied on to conclude that only
99 acres of LDU-8 contained the PCEs for ‘akoko, it fails to acknowledge that the
June 2012 Site Visit Report simply restated conclusions already reached following
the November 2011 site visit. Following the November 2011 site visit, the Service
found that 185 acres of LDU-8 were too degraded to be designated as critical habitat,
see 77 Fed. Reg. at 57714, 21936, and that the 99 acres ultimately designated
contained the necessary coral substrate. AR 4755-56. The June 2012 Site Visit
Report also restated information already contained in the Proposed Rule -- namely
that LDU-8 contains the lowland dry ecosystem PCEs and the unique coral
substrate. Id. ANC, in fact, had already addressed these conclusions in an
26

October 2011 comment letter and subsequently participated in the November 2011
site visit. AR 3007-15, 3728, 9074-81. The November 2011 site visit and the
resulting removal of 185 acres from LDU-8 were included in the reopened comment
period, 77 Fed. Reg. at 21938, of which ANC again availed itself. AR 11660- 63
(commenting on whether LDU-8 contained the relevant PCEs).
In short, the Service was not required to reopen the comment period based on
the June 2012 Site Visit Report.
II.

ANC’s Supplementary Documents Are Not Part of the Record
ANC claims that the economic and biological studies that it attached to its

60-day citizen suit notice are part of the administrative record and constitute the
“best scientific data available” regarding the presence of PCEs within LDU-8. It
argues that ESA section 4(b)(2) required the Service to take these studies into
account in considering ANC’s request to revise the Final Rule and exclude LDU-8.
16 U.S.C. § 1533(b)(2).
Courts limit their analysis of an agency’s rulemaking to the information that
was before the agency when it issued the challenged decision. Parties may not use
post-decision information either to justify or attack an agency’s decision. See
Nevada Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993); Ctr.
For Biological Diversity v. U.S. Fish and Wildlife Serv., 450 F.3d 930, 943-44 (9th
27

Cir. 2006) (listing exceptions to general rule). The supplementary documents and
facts offered by ANC as part of its 60-day citizen suit notice were not considered by
the Service as part of its rulemaking and will not be considered by the Court.
ANC did not explain why it could not have offered the economic valuation
analysis or biological studies attached to its citizen suit notice prior to issuance of the
Final Rule. Indeed, ANC provided extensive economic and scientific comment
throughout the rulemaking process. See, e.g., AR 3020-41 (May 12, 2012 Letter,
Comments on Draft Economic Analysis and Revision of the Proposed Rule); AR
3042-45 (May 10, 2012 Guinther Report, “Additional considerations relative to
Critical Habitat and Euphorbia skottsbergii var. skottsbergii at Barbers Point”); AR
3046-75 (May 2012 Critique of “Economic Analysis of Critical Habitat Designation
for 124 Oahu Species” (Draft—February 2012)); AR 9047-82 (Oct. 3, 2011 Letter
with attachments). Permitting parties to supplement the record in the manner
contemplated here – particularly without offering a justification – could indefinitely
prevent an agency from closing the record prior to taking final action. See
Greenpeace Action v. Franklin, 14 F.3d 1324, 1334 (9th Cir. 1992) (parties may not
establish a post-hoc scientific controversy through evidence that was not before the
agency at the time of its action).

28

Moreover, the Service’s decision to include ANC’s 60-day citizen suit notice
in the administrative record does not alter the Court’s conclusion. Rather, notice is
a frequently litigated issue in ESA cases. See, e.g., Southwest Center for Biological
Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 520-22 (9th Cir. 1998);
Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th Cir. 1996); Cetacean
Community v. Bush, 249 F. Supp. 2d 1206, 1214 (D. Haw. 2003). An agency’s
decision to include a copy of the notice in the administrative record in anticipation of
litigating this issue should not result in a waiver of its argument that it need not have
considered new information provided for the first time with the notice as part of its
rulemaking.
Accordingly, the Service was not required to consider the Final Rule in light
of the supplementary documents appended to ANC’s 60-day citizen suit notice, and
the Court declines to do so either.
III.

The Service’s Ecosystem Approach
The Court now turns to the substance of ANC’s claims that the Service

violated the ESA, first addressing the Service’s “ecosystem approach.” ANC
argues that the Service was required to designate critical habitat, to the extent
prudent and determinable, for each listed species, not for ecosystems, pursuant to

29

16 U.S.C. §§ 1533(a)(3)(A), (b)(2), and 1532(5)(A). It faults the Service for
grouping undeveloped lands into seven different “ecosystem” types based on the
gross physical characteristics of the lands, and then describing the native plants
typically found within each ecosystem, instead of determining the PCEs essential to
each listed species. ANC argues that the PCEs lack specificity and are
contradictory.
The Service maintains that employing ecosystem attributes to identify PCEs
for individual species is consistent with the ESA and its regulations, past FWS
precedent, and the best available data for Hawaiian plants. Although the Final Rule
revised the existing habitat designation for 99 species, which was based primarily on
the specific localities where the species were known to occur, approximately 93% of
the revised critical habitat designation overlaps with the prior designation. 77 Fed.
Reg. at 57650, 57689. ‘Akoko was not one of those species. However, the
Service used data showing both historical and current occupation of the four lowland
dry units designated for ‘akoko. Id. at 57714-16. The Service asserts that it
considered ecosystems that provide these aspects when determining the essential
features for plant species. Where individual species required additional elements,
those were also designated as PCEs, including the coral outcrop substrate for
‘akoko. Id. at 57660.
30

ESA regulations require the Service to identify PCEs essential to a species’
conservation, including “[h]abitats that are protected from disturbance or are
representative of the historic geographical and ecological distributions of a species.”
50 C.F.R. § 424.12(b)(5). Furthermore, the list of appropriate PCEs includes many
ecosystem-type attributes: “. . . seasonal wetland or dryland, water quality or
quantity, host species or plant pollinator, geological formation, vegetation type, tide,
and specific soil types.” Id. at § 424.12(b).
The Final Rule explains the Service’s decision to use an ecosystem approach:
In 2003, the physical or biological features for each plant species
were defined on the basis of habitat features of the areas actually
occupied by the plants, which included plant community,
associated native plant species, locale information (e.g., steep
rocky cliffs, talus slopes, gulches, stream banks), and elevation
(68 FR 35950; June 17, 2003). However, since 2003, we have
found that many areas where these species are currently or
recently reported are marginal habitat; the species occurs in these
areas due to remoteness or inaccessibility to feral ungulates. In
this final rule, the physical or biological features have been
categorized into the ecosystem types on which these species
depend. They have also been more precisely identified, and
now include elevation, precipitation, substrate, canopy,
subcanopy, and understory characteristics.
77 Fed. Reg. at 57698.

31

In the Final Rule, the Service also explains its methodology for determining
the PCEs essential to support the successful functioning of the ecosystem upon
which each species depends:
We consider the primary constituent elements (PCEs) to be the
elements of physical and biological features that, provide for a
species’ life-history processes and are essential to the
conservation of the species. In this rule, PCEs for each of the
124 species are defined based on those physical or biological
features essential to support the successful functioning of the
ecosystem upon which each species depends, and which may
require special management considerations or protection. As
the conservation of each species is dependent upon a functioning
ecosystem to provide its fundamental life requirements, such as a
certain soil type, minimum level of rainfall, or suitable water
quantity (in the case of the three damselflies), we consider the
physical or biological features present in the ecosystems
described in this rule to provide the necessary PCEs for each
species. The ecosystems’ features collectively provide the suite
of environmental conditions within each ecosystem essential to
meeting the requirements of each species, including the
appropriate microclimatic conditions for germination and
growth of the plants (e.g., light availability, soil nutrients,
hydrologic regime, temperature); adequate instream flows and
upland habitat for cover and foraging for the damselfly species;
maintenance of upland habitat so that it provides for the proper
ecological functioning of streams for the damselflies (e.g., water
quality, water temperature); and in all cases, space within the
appropriate habitats for population growth and expansion, as
well as to maintain the historical, geographical, and ecological
distribution of each species. In many cases, due to our limited
knowledge of the specific life-history requirements for these
species, which are little-studied and occur in remote and
inaccessible areas, the more general description of the physical
or biological features that provide for the successful function of
32

the ecosystem that is essential to the conservation of the species
represents the best scientific information available.
Accordingly, for purposes of this rule, the physical or biological
features of a properly functioning ecosystem are the physical or
biological features essential to the conservation of the 124
species in this rule that occur in those ecosystems.
77 Fed. Reg. at 57698 (emphasis added); see also id. at 57697-57703 (describing the
Service’s methodology “identifying the occurrence for each species and determining
the ecosystems upon which they depend”). In response to critical public comments
regarding its ecosystem approach, the Final Rule explains that:
The ecosystems’ features include the appropriate microclimatic
conditions for germination and growth of the plants (e.g., light
availability, soil nutrients, hydrologic regime, and temperature)
and space within the appropriate habitats for population growth
and expansion, as well as to maintain the historical geographical
and ecological distribution of each species. The PCEs are
defined by elevation, annual levels of precipitation, substrate
type and slope, and the potential to maintain characteristic native
plant genera in the canopy, subcanopy, and understory levels of
the vegetative community.
77 Fed. Reg. at 57660.
Neither the ESA nor its implementing regulations prohibit the ecosystem
approach as employed by the Service in this instance. See Arizona Cattle Growers’
Ass’n v. Kempthorne, 534 F. Supp. 2d 1013, 1022-23 (D. Ariz. 2008), aff’d, 606
F.3d 1160 (“No statute or regulation provides a formula for the Service to use in
setting forth PCEs.”). The pertinent regulations require identification of the
33

physical and biological features essential to a species’ conservation, including
“[h]abitats that are protected from disturbance or are representative of the historic
geographical and ecological distributions of a species.” 50 C.F.R. § 424.12(b)(5).
Appropriate PCEs expressly include attributes of ecosystems, such as “seasonal
wetland or dryland, water quality or quantity, host species or plant pollinator,
geological formation, vegetation type, tide, and specific soil types.” Id. at
§ 424.12(b).
The Service determined the ecosystem attributes when considering the
essential features for the plant species at issue here. See, e.g., 77 Fed. Reg. at 57698
(discussing identification of “the appropriate microclimatic conditions for
germination and growth of the plants (e.g., light availability, soil nutrients,
hydrologic regime, temperature); adequate instream flows and upland habitat for
cover and foraging for the damselfly species; maintenance of upland habitat so that it
provides for the proper ecological functioning of streams for the damselflies (e.g.,
water quality, water temperature); and in all cases, space within the appropriate
habitats for population growth and expansion, as well as to maintain the historical,
geographical, and ecological distribution of each species”)); see also Tables 4 & 5
(identifying the physical or biological features of a functioning ecosystem for each
of the ecosystem types identified, and identifying unique PCEs for species). The
34

PCEs detailed by the Service address many of the categories contemplated by the
regulation, and courts have upheld designations involving similar approaches. See,
e.g., Wyo. State Snowmobile Ass’n v. U.S. Fish and Wildlife Serv., 741 F. Supp. 2d
1245, 1261-62 (D. Wyo. 2010) (ecosystem PCEs); Cape Hatteras Access Pres.
Alliance v. U.S. Dep’t of Interior, 344 F. Supp. 2d 108, 122 (D.D.C. 2004)
(identifying common PCEs).
The Court’s role is not to second-guess the Service’s scientific
determinations. Under the ESA, the agency must base its actions on evidence
supported by “the best scientific and commercial data available.” 50 C.F.R.
§ 402.14(g)(8); 16 U.S.C. § 1536(a)(2). “The determination of what constitutes the
‘best scientific data available’ belongs to the agency’s special expertise[.] When
examining this kind of scientific determination, as opposed to simple findings of
fact, a reviewing court must generally be at its most deferential.” San Luis &
Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014)
(citations omitted).
The Court defers to the scientific expertise of the Service that “the
conservation of each species is dependent upon a functioning ecosystem to provide
its fundamental life requirements, such as a certain soil type, minimum level of
rainfall, or suitable water quantity (in the case of the three damselflies),” and its
35

decision to “consider the physical or biological features present in the ecosystems
described in this rule to provide the necessary PCEs for each species.” 77 Fed. Reg.
at 57698. Because ANC has offered no cogent and supported reason why deference
should not be afforded here, the Court declines to disturb the Service’s conclusion
that “[b]ased on an analysis of the best available scientific information, functioning
native ecosystems provide the fundamental biological requirements for the
narrow-range endemics addressed in this rule.” 77 Fed. Reg. at 57102.
IV.

LDU-8 Meets Critical Habitat Standards
A.

LDU-8 Contains Plant PCEs and Coral Outcrop Substrate PCE

ANC posits that LDU-8 does not contain all of the native plant PCEs. There
is no requirement, however, that the unit do so. Home Builders Ass’n of N. Cal. v.
U.S. Fish and Wildlife Serv., 616 F.3d 983, 98 (9th Cir. 2010).2 Nor is there any
requirement that LDU-8 be able to support all, or even one, native plant species at
every point within its borders. Critical habitat includes areas “which may require
special management considerations or protection.” 16 U.S.C. § 1532(5)(a)(i). In
other words, by definition, it includes areas that may not support listed species at the

2

ANC admits to the presence of at least three PCEs on LDU-8. See Plf’s Mot. for Summary
Judgment (Dkt. No. 32), at 30.

36

time of the habitat’s designation. Referring to portions of LDU-8 as “degraded” is
therefore, by itself, of little meaning.3
Significantly, LDU-8 contains the coral substrate PCE necessary for the
‘akoko. This conclusion is supported by the record whether the Service utilizes the
1972 USDA soil data or the site survey data from 2011 and 2012 – each one
confirmed the presence of coral outcrop. See AR 3040a, 4755-57; see also ANC
Mem. in Opp. at 31 (Confirming the presence of coral outcrop substrate in LDU-8,
noting that “ANC has provided site-specific data showing that less than 10 percent
of LDU8 contains the coral outcrop substrate required for ‘akoko.”). LDU-8 also
contains the soil type necessary for most of the remaining 15 plant species for which
LDU-8 has been designated critical habitat, and the presence of other soil types does
not preclude the suitability of the area for ‘akoko, as the Service has shown that other
soils were present in areas where the species was historically observed. See AR
12701-04; 12910-15; see also AR 12750, 12755-81, 13622, 13625, 13636, 13640
(noting other native plants historically present in coral outcrop).

3

While certainly not dispositive, the Court notes that the Service removed 193 acres from its
LDU-8 designation, leaving the 99 acres in controversy, because the 193 acres were “too degraded
to support the species or be functionally restored to support the essential features and habitat[.]”
77 Fed. Reg. at 57658.

37

The Court will not substitute its scientific judgment for that of the Service,
which reasonably concluded that LDU-8 meets the criteria for critical habitat for
these species.
B.

LDU-8 Is Essential to the Conservation of Plant Species

ANC argues that the Service failed to support its finding that areas currently
occupied by each of the species are inadequate for conservation of those species, as
required by 50 C.F.R. §424.12(e). It contends, for instance, that the number of
mature ‘akoko plants needed for the conservation of the species, as well as the
related acreage needed is determined arbitrarily by the Recovery Strategy, and that
the needed acreage does not consider the propagated or outplanted areas where
‘akoko is already growing, thereby making it arbitrary to determine that currently
occupied habitat is not enough. The Service responds that although it is not
required to find that LDU-8 is essential to the listed species, namely the ‘akoko,
because the unit was occupied by ‘akoko at the time of listing, it did so anyway.
See 77 Fed. Reg. at 57714 (“[T]he area being designated contains the physical and
biological features of the lowland dry ecosystem and the coral outcrop substrate that
is essential for the conservation of C. skottsbergii var. skottsbergii. . . . These
physical and biological features are essential to the conservation of the species in
this location because the conservation of the species requires reestablishment of
38

populations of this species in areas where it once occurred.”); see also AR
12685-12881, 12882-13065.
Regulations require the Service to “designate as critical habitat areas outside
the geographical area presently occupied by a species only when a designation
limited to its present range would be inadequate to ensure the conservation of the
species.” 50 C.F.R. §424.12(e). The Final Rule makes this finding explicitly:
To the extent that portions of this unit may not have been
occupied at the time of listing, they are essential to the
conservation of the species because, as discussed above,
conservation of this species will require establishment of
additional populations and this is one of the few suitable
locations. Oahu—Lowland Dry—Unit 8 is one of four
locations included in this final critical habitat designation that is
essential to the conservation of Chamaesyce skottsbergii var.
skottsbergii. It was previously occupied by the species and still
contains the features essential to its conservation, such as the
unique coral outcrop substrate. . . .
A designation limited to areas presently occupied by the species
would be inadequate to ensure the conservation of the species
because the one occupied unit (only Oahu—Lowland Dry—Unit
11, see below, is occupied by wild individuals; Oahu—Lowland
Dry—Unit 9 contains outplanted, propagated individuals) would
not provide enough area to support 7 to 8 populations needed for
recovery, as determined in the ‘‘Recovery Needs and Strategy
for Chamaesyce skottsbergii var. skottsbergii (Ewa Plains
akoko)’’ (Service 2012, entire). There are no other geographic
areas that are both undeveloped and contain the species specific
PCE of coral outcrop substrate.

39

77 Fed. Reg. at 57714. Even assuming that FWS did not fully consider the effect of
LDU-9’s outplanted population of ‘akoko in determining that the current occupied
areas are not sufficient for conservation, LDU-9 only consists of 17 acres. Therefore,
even considering that population, the size of the occupied areas would not be
sufficient to support the seven to eight populations needed for recovery.
With respect to the other 15 plant species, ANC characterizes the Final Rule
as finding that their current occupied areas must be inadequate because these species
have small populations. ANC argues that although existing populations may be
inadequate, the Final Rule makes no finding that the areas currently occupied by
those populations are actually inadequate for their conservation. See 77 Fed. Reg.
at 57714 (“[W]e have determined the lands within this unit [LDU-8] are essential for
the conservation of these [15] lowland dry species, because they provide the habitat
necessary for the reestablishment of wild populations within the historical ranges of
the species . . . Due to their small numbers of individuals or low population sizes,
these species require suitable habitat and space for expansion or reintroduction to
achieve population levels that could achieve recovery[.]”).
The Service points to the decline of several of these other species, which it
characterizes as being on the verge of extinction. It identifies the Gouania meyenii
that is no longer found in the lowland dry ecosystem, and the Isodendrion pyrifolium
40

that is no longer found on Oahu. 77 Fed. Reg. at 57693. It also points to the low
population numbers for several of these species. The 2011 HPPRCC revised
recovery objective guidelines, upon which the Service relied, indicate that 75 to 300
mature reproducing individuals are necessary to prevent imminent extinction,
depending on the life span (i.e., long-lived perennials, short-lived perennials, or
annuals). AR 16325. The population numbers for several plant species are well
below this range. The Service points to Bonamia menziesii (fewer than 60
individuals), Euphorbia haeleeleana (65 individuals), Gouania vitifolia (58 to 64
individuals), Hibiscus brackenridgei (47 to 50 individuals), Neraudia angulata
(over 200 individuals), and Schiedea kealiae (one population between 50 and 100
individuals). 77 Fed. Reg. at 57690-96. Considering the low population numbers
combined with the need for 1,000 to 10,000 mature reproductive individuals for
recovery, depending on life span, see AR 16328, and the space required for these
populations, the Service reasonably concluded that the areas currently occupied by
these species are not sufficient for conservation.
In reviewing the Service’s inclusion of LDU-8, the Court is mindful that the
purpose of critical habitat designation is to promote the recovery of the species.
Home Builders, 616 F.3d at 989 (“‘[T]he purpose of establishing critical habitat is
for the government to carve out territory that is not only necessary for the species’
41

survival but also essential for the species’ recovery.’ Thus, Gifford Pinchot
requires FWS to be more generous in defining area as part of the critical habitat
designation. [Plaintiffs’] attempt to use the case in support of its argument that
FWS should have included less area within the critical habitat designation makes no
sense. Gifford Pinchot says nothing about how many PCEs must be included in an
area for it to be classified as critical habitat.”) (quoting Gifford Pinchot Task Force
v. U.S. Fish and Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 2004)).
The Court also acknowledges that the Service has significant discretion in
determining whether to exclude particular areas. See 16 U.S.C. § 1533(b)(2) (the
Service “may exclude any area from critical habitat if [it] determines that the
benefits of such exclusion outweigh the benefits of specifying such area as part of
the critical habitat, unless [it] determines, based on the best scientific and
commercial data available, that the failure to designate such area as critical habitat
will result in the extinction of the species concerned.”); see also Cape Hatteras
Access Preservation Alliance v. U.S. Dep’t of the Interior, 731 F. Supp. 2d 15, 29
(D.D.C. 2010) (“The plain reading of the statute fails to provide a standard by which
to judge the Service’s decision not to exclude an area from critical habitat.”). In light
of the discretion afforded the agency, the Court concludes that the Service

42

appropriately made its critical habitat designation in a manner consistent with the
scientific evidence available, including with respect to LDU-8.
V.

The Service Considered the Economic Impact of its Designation
The ESA mandates consideration of economic impact before the designation

of critical habitat. 16 U.S.C. § 1533(b)(2). An agency is required only to
“consider” the economic impact. See Alaska Oil and Gas Ass’n v. Salazar, 916 F.
Supp. 2d 974, 993 (D. Alaska 2013) (“the legal hurdle regarding the Service’s
analysis of the economic impacts of designation is fairly low. The Service must
show only that it considered all potential economic impacts of the designation. . . .
[T]he statute and regulation merely state that the Service must solely consider all
such costs. The Service then has complete discretion over the application of such
analysis vis-à-vis critical habitat designation”); id. at 992 (“Although Congress has
turned over the analysis of the impacts cutting in favor or against critical habitat
designation to the discretion of the Service, the Service is still required to show that
in arriving at its decision, it took into consideration the economic and other relevant
impacts. Specifically, the Service must consider ‘economic impact[s] before the
designation of critical habitat.’ However, ‘[a]gencies must consider only those
indirect effects that are reasonably foreseeable. They need not consider potential
effects that are highly speculative or indefinite.’”) (citations omitted); Building
43

Industry Ass’n of Bay Area v. U.S. Dep’t of Commerce, 2012 WL 6002511, at 5
(N.D. Cal. Nov. 20, 2012) (“[T]he court finds that the text of section 4(b)(2) is clear
in requiring NMFS to ‘consider’ the economic impact of designation. . . . However,
the statutory text does not specify any particular methodology that must be used to
accomplish this ‘consideration.’”). The Service is presumed to have followed
regulations and considered required impacts unless rebutted by evidence in the
record to the contrary. Rock Creek Alliance v. FWS, 663 F.3d 439, 443 (9th Cir.
2011).
The Final Rule explains how the FEA quantifies the economic impacts of
potential conservation efforts:
The economic impact of the final critical habitat designation is
analyzed by comparing scenarios both ‘‘with critical habitat’’
and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’
scenario represents the baseline for the analysis, considering
protections already in place for the species (e.g., under the
Federal listing and other Federal, State, and local regulations).
The baseline, therefore, represents the costs incurred regardless
of whether critical habitat is designated. The ‘‘with critical
habitat’’ scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the
species.
77 Fed. Reg. at 57739. The FEA estimates with respect to ESA, Section 7
consultation that:

44

The upper bound of administrative costs and conservation efforts
to the Service, Federal agency, and third parties related to section
7 consultation in occupied critical habitat constitute the majority
of total baseline costs (approximately 72 percent). Total future
baseline impacts are estimated to be $105,000, which equates to
(1) $54,178 in present value terms using a 7 percent discount rate
over the next 20 years (2011 to 2031); (2) $77,075 in present
value terms using a 3 percent discount rate over the next 20
years; or (3) $5000 annualized over the next 20 years.
The upper bound of administrative costs and conservation
efforts to the Service, Federal agency, and third parties related to
section 7 consultation in unoccupied critical habitat constitute
the majority of total incremental costs (approximately 28
percent). Total future incremental impacts are estimated to be
$40,000 over the next 20 years (2011 to 2031). Annualized
incremental administrative in present value terms using a 7
percent discount rate over the next 20 years is $3,692, or $1,905
using a 3 percent discount rate.
Id. With respect to potential economic impacts,
The FEA estimates total upper bound potential economic
impacts in areas proposed as critical habitat over the next 20
years (2011 to 2031) to be $145,000, which equates to (1)
$94,178 in present value terms using a 7 percent discount rate
over the next 20 years (2011 to 2031); (2) $117,075 in present
value terms using a 3 percent discount rate over the next 20
years; (3) $5000 annualized using a 7 percent discount rate over
the next 20 years, or (4) $6,905 using a 3 percent discount rate
over the next 20 years.
Id. As a result, the Service concluded that:
Our economic analysis did not identify any disproportionate
costs that are likely to result from the designation.
Consequently, the Secretary has determined not to exercise his

45

discretion to exclude any areas from this designation of critical
habitat for the 124 species based on economic impacts.
Id. at 57740.
ANC argues that the Service improperly limited its analysis to administrative
costs associated with ESA Section 7 consultation—$145,000 in total, of
which $40,000 is attributable to LDU-8—but ignored the $7.6 million in lost
development that the FEA showed would result from designation of LDU-8. See
77 Fed. Reg. at 57739; AR 9589. The plain language of the Final Rule, however,
shows that the Service did consider these economic impacts as well. See 77 Fed.
Reg. at 57739-40, 57661-63; AR 1243-45, 1264-65, 1275-80. The Final Rule
specifically addresses the $7.6 million amount. See Fed. Reg. at 57743 (“Table 4 in
Part II of the Final Economic Analysis concludes that the upper bound of economic
impacts to small businesses as follows: (1) Property Value Impacts (based on a total
property value impact (upper-bound) of $7,620,971 for the two unoccupied parcels
in LDU8)—2 firms could potentially be affected, and realize a $351,666 average
annualized property value impact at a 7 percent discount rate ($247,193 at a 3
percent discount rate), based on average receipts of $14,673,156.”).
As the Service notes, it was responsive to ANC’s public comments regarding
economic analysis, and modified it where appropriate. See, e.g., 77 Fed. Reg. at

46

57661 (noting possibility of federal nexus for Section 7 consultation purposes and
examining upper-bound of economic costs); id. at 57661-62 (recognizing LDU-8
within planned Kapolei West Project with vested development rights); id. at 57662
(economic impacts on small businesses); id. at 57663 (responding to comments on
plans for development in LDU-8; responding to comments that economic impact
understated by using tax assessment values and failed to account for future revenue
streams); AR 1275 (“Based on public comment received regarding the draft
economic analysis, the Service is now assuming that it is likely that that planned
development for Kapolei West, which overlays proposed critical habitat will likely
entail a section 7 consultation.”).
ANC also argues that the FEA understated the true cost of designating LDU-8
because it does not account for the cost of Section 7 consultation. To the extent this
argument is based on post-decisional data submitted with ANC’s 60-day notice, the
Court does not consider it. Further, the Service is owed deference in determining
the best commercial data to employ. See Alaska Oil and Gas Ass’n, 916 F. Supp.
2d at 993 (“With regard to future direct administrative costs to be incurred through
Section 7 consultation, the Court will defer to the Service’s technical expertise in its
cost projections.”). Yet even without that deference, the Court finds that to the
extent economic impact is required to be considered, the Service clearly did so here,
47

and on the basis of reasoning and studies that the Court has no reason to question.
Therefore, the FEA is not flawed on this basis and the Service complied with the
ESA’s mandate to consider economic impacts.4
VI.

NEPA Does Not Apply to Critical Habitat Designations
ANC argues that the Service violated NEPA by failing to analyze the

environmental effects of the Final Rule, such as through the preparation of an
Environmental Impact Statement (“EIS”). The Ninth Circuit has expressly held
that NEPA does not apply to critical habitat designations. Douglas County v.
Babbitt, 48 F.3d 1495, 1501-08 (9th Cir. 1995). In so holding, the Ninth Circuit

4

The Court does not review the Service’s ultimate decision not to exclude LDU-8 from
designation, which is committed to the agency’s discretion.
In this case, section 4(b)(2) of the ESA does not provide any standard by which to
judge an agency’s decision not to exclude an area from critical habitat designation.
. . . Put another way, section 4(b)(2) provides a standard of review to judge
decisions to exclude, but provides no such standard to review decisions not to
exclude. Thus, the agency action in this case is committed to agency discretion by
law, and the APA precludes court review of NMFS’ ultimate decision. See also
Cape Hatteras Access Preservation Alliance v. U.S. Dept. of the Interior, 731
F.Supp.2d 15, 29 (D.D.C.2010) (“The plain reading of the statute fails to provide a
standard by which to judge the Service’s decision not to exclude an area from
critical habitat.”); Home Builders Ass’n of Northern California v. U.S. Fish &
Wildlife Service, 2006 WL 3190518 (E.D. Cal. 2006) (“[T]he court has no
substantive standards by which to review the [agency’s] decisions not to exclude
certain tracts based on economic or other considerations, and those decisions are
therefore committed to agency discretion.”).

Building Industry Ass’n of Bay Area v. U.S. Dep’t of Commerce, 2012 WL 6002511, at *7 (N.D.
Cal. Nov. 30, 2012).

48

articulated three reasons why critical habitat designations are not subject to NEPA:
(1) the ESA displaced the procedural requirements of NEPA with respect to critical
habitat designation; (2) NEPA does not apply to actions that do not alter the physical
environment; and (3) critical habitat designation serves the purposes of NEPA by
protecting the environment from harm due to human impacts. Id. See also Drakes
Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1090 (9th Cir. 2014) (“The Secretary’s . . .
designation under the ESA, ‘protects the environment from exactly the kind of
human impacts that NEPA is designed to foreclose.’”) (citing Douglas County, 48
F.3d at 1507)).
Because the Service was not required to comply with NEPA when
designating critical habitat, the Service’s related standing objection is moot.
CONCLUSION
For the foregoing reasons, the Court DENIES ANC’s motion for summary
judgment, and GRANTS the Service’s cross-motion for summary judgment.
IT IS SO ORDERED.
DATED: September 30, 2014 at Honolulu, Hawai‘i.

49