Critical Habitat and Hawaiian Plants

BOZEMAN, MT DENVER, CO HONOLULU, HI JUNEAU, AK OAKLAND, CA SEATTLE, WA TALLAHASSEE, FL WASHINGTON, D.C.

CRITICAL HABITAT AND HAWAIIAN PLANTS

I. INTRODUCTION

Of the nearly 400 Hawaiian plants and animals listed as endangered or threatened under the federal Endangered Species Act (“ESA”), critical habitat has been designated for only five. Under court order, the U.S. Fish and Wildlife Service (“FWS”) is considering the designation of critical habitat for 245 listed Hawaiian plants. FWS is currently requesting public comments on proposed rules to designate critical habitat on Kauaì and Niìhau. Proposed rules to designate critical habitat on Maui and Kahoòlawe, Länaì, Molokaì, Hawaiì, and Oàhu are next.1

Because critical habitat has been designated for only a handful of Hawaiian species, the concept of critical habitat is not well understood, and its potential for promoting species recovery and ecosystem preservation not fully appreciated. This fact sheet seeks to promote a greater understanding of critical habitat and the significant role it can play in the recovery of Hawai`i’s imperiled species, including the endangered and threatened plants that are the subject of FWS’ request. Among other benefits, critical habitat would:

◊ prohibit federal agency actions that adversely modify habitat identified as essential to the recovery of listed plants ◊ promote funding for large-scale, ecosystem-level management programs ◊ put in place a uniform and comprehensive habitat protection plan so that conflicts with potentially harmful federal and non-federal projects can be avoided ◊ identify areas in which section 7 consultations should be triggered, thereby ensuring that consultations are conducted where required and necessary ◊ educate the public, as well as state and local governments, about areas essential to the survival and recovery of Hawai`i’s imperiled plants ◊ protect plants and animals that rely on similar habitat values, thereby promoting native ecosystem conservation

To provide context for FWS’ public comment request, we initially describe the litigation that prompted FWS’ re-evaluation of whether designating critical habitat would be prudent for the 245 listed Hawaiian plant taxa (Part II). We then explain what “critical habitat” is and how it is designated (Part III). In Part IV, we describe the vital role that critical habitat plays in ensuring that federal agency actions not only avoid pushing species to extinction, but also do not destroy habitat on which endangered and threatened species depend for their ultimate recovery.

We then focus on the 245 Hawaiian plants at issue, detailing how designating critical habitat would promote their recovery, enhance conservation efforts, provide uniform habitat protection, and facilitate more environmentally appropriate land use planning and project development decisions (Part

1 For more information on the proposed rules, contact Christa Russell, Coordinator for Listing and Recovery of Plants and Invertebrates, U.S. Fish and Wildlife Service, Pacific Islands Office, P.O. Box 50088, Honolulu, Hawai`i 96850-0001.

223 S. KING STREET, SUITE 400, HONOLULU, HI 96813-4501 T:808.599.2436 F:808.521.6841 E:[email protected] Website:www.earthjustice.org

V). We also describe how designating critical habitat for these plants would promote ecosystem protection and benefit species listed in the future (Part VI). Finally, we dispel myths about designating critical habitat for these plants, explaining why it would not increase, and may well decrease, human threats (Part VII) and that it should not disrupt FWS’ other listing and recovery efforts (Part VIII).

II. BACKGROUND

On January 29, 1997, Earthjustice Legal Defense Fund (then known as Sierra Club Legal Defense Fund) filed a lawsuit on behalf of the Conservation Council for Hawai`i, Sierra Club, and Hawaiian Botanical Society, against the U.S. Fish and Wildlife Service for failing to designate critical habitat for hundreds of threatened and endangered Hawaiian plant taxa, in violation of the federal Endangered Species Act. FWS had refused to designate critical habitat for any of these plants on the ground that designation would not be “prudent.” To defend its decisions, FWS claimed that: (1) critical habitat designation would increase the likelihood of illegal taking and vandalism of the plants; (2) there would be little benefit to plants on private, county and state land because critical habitat affects only federal agency actions; and (3) there would be little benefit to plants on federal land because critical habitat designation would not increase the protection from harmful government actions that these plants already enjoy by virtue of being listed.

On March 9, 1998, federal district court Judge Alan Kay ruled against FWS on all three claims, finding that FWS “failed to articulate a rational basis for invoking the imprudence exception and not designating critical habitat for the 245 plant species at issue.” Emphasizing that the ESA “requires the designation of critical habitats in all but rare cases,” Judge Kay ordered FWS to reconsider its decisions not to designate critical habitat for these plants and to make new decisions consistent with the court’s findings.

On August 10, 1998, Judge Kay issued an order establishing a timetable for FWS to publish new proposed critical habitat decisions. This timetable requires FWS to publish new proposed decisions for at least 100 of the plant taxa by November 30, 2000, and for the remaining 145 taxa by April 30, 2002.

FWS is now soliciting public comment on and information regarding, among other things, whether the designation of critical habitat for these Hawaiian plants would be “prudent.” The deadline to submit comments to FWS is March 1, 1999.

III. CONGRESS INTENDED THAT THE DESIGNATION OF CRITICAL HABITAT FOR HAWAI`I’S LISTED PLANTS WOULD BE THE RULE, NOT THE RARE EXCEPTION

The ESA requires that, to the maximum extent prudent and determinable, the Secretary of the Interior designate critical habitat for plants and animals at the time they are listed as threatened or endangered.2 The Secretary has delegated this task to FWS. The designation of critical habitat is necessary to help achieve one of the ESA’s central goals: the preservation of the ecosystems upon which threatened and endangered species depend for their continued survival and recovery.

2 Critical habitat designation may be postponed for one year if the critical habitat is not yet determinable at the time a given species is added to the list of endangered and threatened species.

The ESA defines critical habitat as those geographic areas occupied by a species at the time it is listed on which are found those physical or biological features: (1) essential to the conservation3 of the species; and (2) that may require special management conditions or protection. Unoccupied areas may also be designated as critical habitat, but only if they are deemed essential to the recovery of the species. In addition, areas may be excluded from critical habitat (unless such exclusion would result in extinction of the species) if the benefits of such exclusion (including economic considerations) outweigh the benefits of designating that area.

In rare instances, FWS may decide not to designate critical habitat at all, but only if it finds that designation would not be “prudent.” Designation is not prudent if: (1) the species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of threat to the species; or (2) designation of critical habitat would not be beneficial to the species.

In finding that FWS violated the ESA when it refused to designate critical habitat for the 245 endangered and threatened Hawaiian plants in question, the district court affirmed that Congress intended the designation of critical habitat to be the rule, and the failure to designate the rare exception. Unfortunately, FWS’ implementation of the ESA has turned Congress’ intent on its head, making the designation of critical habitat the rare exception, especially in Hawai`i. Of the nearly 400 Hawaiian plants and animals on the list of endangered and threatened species, critical habitat has been designated for only five: the Hawaiian monk seal (Monachus schauinslandii), the palila (Loxioides bailleui), and three plants (Gouania hillebrandii, Kokia drynarioides, and Panicum fauriei var. carteri). Consequently, nearly all of Hawai`i's listed species and their associated ecosystems have been deprived of the full range of protection Congress intended them to have, and habitat essential to species recovery continues to be degraded and destroyed by federal actions.

IV. CRITICAL HABITAT AND SECTION 7 CONSULTATION PROCESS

ESA section 7 provides two separate, legally enforceable limitations on federal agency actions to protect endangered and threatened species. The first -- which comes into force automatically whenever a species is listed -- prohibits federal actions that “jeopardize” the species’ continued existence, i.e., actions that would push the species to extinction. The second -- which protects only species with designated critical habitat -- bars federal agencies from authorizing, funding, or carrying out any action likely to adversely modify or destroy critical habitat, i.e., actions that will interfere with the recovery of listed species. Thus, listed species benefit from both section 7 protections only when critical habitat has been designated.

To avoid both jeopardy and adverse modification of critical habitat, ESA section 7 requires federal agencies to consult with FWS (or the National Marine Fisheries Service for marine species) regarding any action -- whether ongoing or proposed for the future -- that may affect a listed species or its critical habitat. Such actions may include, but are not limited to, the following:

◊ military live-fire training and associated activities

3 The term “conservation” means the use of all necessary methods and procedures to bring any threatened or endangered species to the point at which it no longer needs the ESA’s protection, i.e., the species has recovered.

◊ Pittman-Robertson funding to the Department of Land and Natural Resources for hunting and game management ◊ federally funded infrastructure, such as roads, sewage plants and airport expansions ◊ federal funds to landowners for logging, cinder mining, grazing and farming ◊ Clean Water Act dredge and fill permits issued by the Army Corps of Engineers

At the conclusion of consultation, FWS must issue a biological opinion (“BO”), which states whether the action as proposed would violate section 7’s prohibitions. If it would, the BO may specify conditions that the federal agency must implement to avoid jeopardizing the species and impediments to recovery from adverse modification of critical habitat.

Federal ownership of land, federal funding for various state, county and private programs, and active federal involvement in land and water development in Hawai`i are all significant.4 Critical habitat can be an extremely powerful tool for protecting species and ecosystems affected by these federal actions. With critical habitat, section 7 consultation must focus not only on avoiding extinction, but also on promoting recovery. However, to realize this potential, critical habitat must first be designated.

V. CRITICAL HABITAT WOULD SIGNIFICANTLY BENEFIT ENDANGERED AND THREATENED HAWAIIAN PLANTS

A. Prohibition Against Harmful Federal Actions In Critical Habitat.

The most important benefit of critical habitat is the ESA's prohibition on federal agency actions that adversely modify or destroy critical habitat. The range of many Hawaiian plants has been reduced dramatically, and a significant amount of occupied habitat has been severely degraded. At a minimum, critical habitat designation would ensure that federal agency actions do not contribute to further degradation and destruction of occupied habitat that is essential for the survival and recovery of these plants.

Moreover, many listed Hawaiian plants will not recover if only currently occupied areas are protected and managed. In these cases, critical habitat would protect currently unoccupied habitat identified as essential for eventual species recovery. The other section 7 prohibition -- the duty not to push species to extinction (jeopardy) -- does not guarantee this broad and forward-looking habitat protection because, unlike the protection for critical habitat, it typically does not focus on species recovery.

Even where federal agency actions currently do not pose identifiable threats to listed plants, designating critical habitat would be beneficial since it ensures that adequate habitat protection will be in place in the future when potentially harmful federal actions are proposed. Federally funded projects -- including highways, harbor expansions, sewage plants, and the like -- come in myriad and often

4 Note that ESA Section 7 focuses on who is taking an action -- federal agencies -- not on where the action is taking place. Consequently, designating critical habitat provides protection against harmful federal agency actions on both federal and non-federal (state, local, private) lands. Conversely, designating critical habitat on non-federal lands does not restrict or otherwise affect the activities of non- federal entities and individuals unless they rely on federal agencies to fund, approve, or carry out their projects.

unexpected forms, and can come out of the blue to pose significant threats to listed plants on federal, state, county and private lands.5 By the time these proposals are on the table, it is often too late to extend critical habitat protection to areas vital to listed plants’ recovery.

B. Enhanced Federal Conservation Programs.

As noted above, at the conclusion of the section 7 consultation process, FWS issues a BO that states, among other things, whether a proposed federal action will destroy or adversely modify critical habitat. Where it will, the BO must specify reasonable and prudent alternatives to the proposed action that would avoid these prohibited impacts. These alternatives may include the implementation of mitigation measures -- such as fencing, weeding, ungulate control and outplanting -- that are necessary to ensure that the net effect on critical habitat will be positive. In this way, designating critical habitat can promote the institutionalization of large-scale, ecosystem-level management, opening the door for management programs to receive permanent base funding as a necessary component of an agency’s traditional activities.

The Saddle Road realignment project -- which proposes to pave a portion of the palila’s critical habitat -- vividly illustrates the significant role critical habitat can play in enhancing federal conservation efforts. To mitigate impacts on palila critical habitat, the United States Army and federal Department of Transportation -- the project’s federal sponsors -- propose to spend more than $14 million to, among other things, fence and remove ungulates in 3,000 acres of native forest at Kïpuka Àlalä. In contrast, no mitigation measures are proposed to compensate for habitat degradation affecting other listed species that occur in the project area, but lack critical habitat protection, including the nënë (Nesochen sandvicensis), ìo (Buteo solitarius), `öpeàpeà (Lasiurus cinereus semotus), dark-rumped petrel (Pterodroma phaeopygia sandwichensis), Newell’s shearwater (Puffinus newelli) and several listed plants.

C. Uniform Protection For Species In Question.

By identifying the habitat that is essential to listed Hawaiian plants’ recovery ahead of time, designating critical habitat ensures that a uniform and comprehensive protection plan is in place prior to consultation. In the absence of such designation, the determination of the importance of a given habitat area may occur in a piecemeal fashion, as individual federal actions arise and agencies consult with FWS regarding potential impacts to individual plants or populations.

Designating critical habitat also places all federal agencies on notice that the entire area designated as critical habitat is sensitive. Agencies would know this before making financial or contractual commitments to carry out, authorize, or fund projects in the area, so that potential conflicts can be avoided. This, in turn, would enable resources from both the public and private sector to be better spent on conservation, rather than fighting court battles over proposed harmful federal actions.

5 For example, in 1998, the United States Navy announced plans to construct a deep-draft harbor and missile launching site on Tern Island in the French Frigate Shoals, despite the fact that the island is protected as part of the Hawaiian Islands National Wildlife Refuge. The presence of designated critical habitat for the endangered Hawaiian monk seal undoubtedly played a significant role in the Navy’s subsequent reconsideration of this proposal.

Finally, designation of critical habitat plays a critical role in identifying those areas in which section 7 consultations should be triggered, thereby ensuring that consultations are conducted where required and necessary. In some cases, it is easier to determine that a federal action may adversely affect critical habitat than it is to determine potential impacts on the listed plants themselves. For example, FWS provides funding to the State of Hawai`i Department of Land and Natural Resources for game management and hunting programs on all of the main Hawaiian islands. In many cases, the impacts of rooting, browsing, and grazing mammals on habitat are easier to detect and evaluate than the impacts on a given population or individual plant, especially in cases of plants that ungulates do not eat or otherwise destroy directly.

D. Public Education And Support For Species Conservation.

Although designating critical habitat directly restricts only federal agency actions, the designation process plays an important role in educating the public, as well as state and local governments, about areas essential to the survival and recovery of Hawai`i’s endangered and threatened plants. This knowledge can inform state, local, and private parties in making land use planning and project development decisions. If such critical habitat is identified early in the planning process, harmful projects and adverse impacts to listed species and their critical habitat can be avoided. The educational value of critical habitat designation should not be underestimated in Hawai`i, where most people want to help conserve threatened and endangered species and the native ecosystems on which they depend.

For example, designating critical habitat would confer significant benefits on the endangered Mauna Kea silversword (Argyroxiphium sandwicense ssp. sandwicense). Currently, mouflon sheep are undermining state and federal efforts to recover the species in the wild, eating the plants almost as quickly as they are outplanted. Formally identifying habitat areas that must be protected to allow for the plant’s recovery would help conservationists counter the State of Hawai`i Department of Land and Natural Resources’ recent initiatives to “manage” herds of mouflon on Mauna Kea on the ground that these animals allegedly will not degrade native ecosystems.

VI. DESIGNATING CRITICAL HABITAT FOR THE 245 PLANT TAXA AT ISSUE WOULD PROMOTE ECOSYSTEM PROTECTION AND BENEFIT SPECIES LISTED IN THE FUTURE

A. Protection For Associated Species And Ecosystems.

Because critical habitat seeks to preserve and enhance habitat, rather than focusing narrowly on individual members of a listed plant taxa, designating critical habitat for the 245 Hawaiian plants at issue would significantly benefit countless native plants and animals, both listed and unlisted, that rely on similar habitat values, and would generally promote native ecosystem conservation. For example, designating critical habitat for the dozen or so listed plants at the Pöhakuloa Training Area (PTA) on the island of Hawai`i would protect some of the best remaining dry forest ecosystems in the state. Without critical habitat, the Army is likely to fence small populations of listed plants, but we will ultimately lose the mämane-naio forest and other ecosystems at PTA to feral ungulates, weeds, and fire.

B. Promoting Habitat Protection In Future Listing Decisions.

Designating critical habitat for the listed Hawaiian plants at issue would set the tone for future listings in Hawaiì. Currently, proposed listing rules are pending for the Oàhu èlepaio (Chasiempis sandwichensis ibidis), Newcomb’s snail (Erinna newcombi), Blackburn’s sphinx moth (Manduca blackburni), Kauaì cave wolf spider (Adelocosa anops), Kauaì cave amphipod (Spelaeorchestia koloana), and 10 plant taxa from Maui Nui. All of these species are being proposed as threatened or endangered without critical habitat. It is crucial that FWS is held to the law and designates critical habitat for the Hawaiian plants in question, as well as pending and future listed species.

VII. DESIGNATING CRITICAL HABITAT WILL NOT INCREASE THREATS TO LISTED HAWAIIAN PLANTS

In determining whether designating critical habitat for Hawai`i’s listed plants would be “prudent,” FWS must take into consideration whether designation would increase any existing threats to these plants from taking or other human activities. As discussed below, for a variety of reasons, designation would not increase human threats. On the contrary, because many individuals and groups in Hawai`i are deeply committed to protecting native plants and promoting their recovery, the increased public awareness about listed plants’ habitat needs from the designation process would likely contribute significantly in many cases to reducing any such threats that might exist.

Initially, the final rules that FWS published when it listed the 245 Hawaiian plants at issue confirm that, for the overwhelming majority of these plants, there are simply no existing threats from direct, intentional human taking such as collecting or vandalism. Twenty-seven rules, covering 195 plants, contain no evidence that either overcollecting or vandalism actually poses a threat. Ten of the rules, covering 67 plants, go so far as to expressly state that overutilization is “not known to be a factor” threatening the plants. In the absence of historic threats from direct human taking of these plants, it is difficult to fathom why designating critical habitat would create new threats.6

Significantly, there have been no published reports that any of the three Hawaiian plants with critical habitat have ever suffered overcollecting or vandalism as a result of that designation. The designated critical habitat of one of these plants -- Carter’s panicgrass (Panicum fauriei var. carteri) -- encompasses the island of Mokoli`i (“Chinaman's Hat”) off O`ahu, a conspicuous and well-known landmark. Despite the ease of locating this critical habitat, there have been no reports of vandalism or illegal collecting there in the more than 15 years since its designation.

To the extent that any listed plants do face human threats from collecting and vandalism, designating critical habitat would not provide the key to lead would-be collectors and vandals to the plants. By definition, critical habitat includes all areas essential for the conservation of the species, whether presently occupied or not. FWS regulations provide that, when critical habitat is designated, descriptions of that habitat should refer only to the boundaries of these general areas, not to the specific locations of individual members of the listed species. The critical habitat map for Gouania hillebrandii, attached to this fact sheet, illustrates the general nature of the locational information released to the

6 FWS claims that the listing of plants as threatened or endangered publicizes the rarity of the plants and, thus, can make them attractive to researchers, curiosity seekers or collectors. However, even assuming the accuracy of this claim, any increase in human threats would be associated with the listing of the plants, which has already occurred, not designation of their critical habitat.

public in the designation process and how useless critical habitat maps would be for locating listed plants.

Moreover, even without critical habitat designation, ample information is already available to would-be collectors and vandals regarding the location of many listed Hawaiian plants. The final listing rules themselves -- which FWS has identified as the trigger for increased interest in these plants -- often describe in great detail their locations. For example, the rule listing Hibiscadelphus giffardianus and Melicope zahlbruckneri states that the only extant populations of these plants are found in fenced sites at Kïpuka Puaulu (Bird Park) in Hawai`i Volcanoes National Park. Critical habitat designation could not possibly provide any more specific information regarding the location of these rare plants and, thus, could not be responsible for increasing human threats.

Even where the final rules provide more general descriptions of the known locations of listed plants, the public can easily glean any missing information from books, species recovery plans, articles, theses, dissertations and other publicly-available materials. The most important of these sources is the Hawai`i Heritage Program, whose materials pinpoint on detailed maps the locations where these endangered and threatened plants have been observed.

For many plants, public educational and interpretive materials -- such as the Silversword Loop in Haleakalä National Park -- point directly to listed plants. And, of course, fenced exclosures are one of the most conspicuous indications of the presence of threatened and endangered plants, yet, no one advocates that we stop fencing because it might increase the likelihood of illegal take and vandalism.

The difficulty of accessing many listed plants in Hawai`i means that, even if people learn where they are located, increases in human threats are unlikely. Dozens of listed plants are found in military training areas, where public entry is prohibited and where unexploded ordinance and live-fire training ward off would-be collectors and vandals. Other threatened and endangered plants are found only on sheer cliffs and in deep gullies and ravines. Our concern should be with addressing the adverse impacts from military activities and ungulates, not with the designation of critical habitat.

Finally, designating critical habitat would reduce threats to listed plants by contributing to the public’s appreciation of their imperiled status and habitat needs, which, in turn, would lead to increased public support for protection of, and efforts to protect, critical habitat. The public's interaction with the endangered Stenogyne kanehoana illustrates that, far from posing a threat, the public can take an active role in safeguarding Hawai`i’s rare plants when it understands their habitat needs. The final rule listing Stenogyne as an endangered species identifies competition from Koster's curse (Clidemia hirta) as “the single greatest threat to the species” and dismisses threats from overcollecting as “not known to be a factor.” A FWS memorandum confirms that people who hike to see the plant usually spend time removing Koster’s curse from the Stenogyne site. Critical habitat designation would educate even more people about the habitat needs of plants like Stenogyne, likely resulting in a net reduction, rather than increase, in human threats.

VIII. DESIGNATING CRITICAL HABITAT FOR HAWAI`I’S LISTED PLANTS WILL NOT DISRUPT FWS’ OTHER LISTING AND RECOVERY EFFORTS

Designating critical habitat for the 245 Hawaiian plants at issue will not require FWS to abandon other listing and recovery programs that it currently carries out or funds. To justify its failure to comply with the ESA’s mandate to designate critical habitat for Hawai`i’s listed plants, FWS has greatly

exaggerated the magnitude of the task before it. FWS has already compiled most of the required data on the plants’ status, range, and threats, having used these data as the basis of its initial decisions to list the plants as endangered or threatened. Since that time, FWS biologists have updated this information as part of FWS’ project to map “essential habitat” for most, if not all, of the plants at issue.

Moreover, in estimating the cost of proposing critical habitat for the plants at issue, FWS has failed to account for significant economies of scale that can be realized by designating critical habitat for several Hawaiian plant taxa at the same time. Many of the plants in question have overlapping habitat needs and face similar threats. By grouping these plants, as it did to process their listing packages, FWS could significantly reduce the time and money needed to complete the analyses that the ESA requires.

When the district court established the timetable for FWS to make new critical habitat decisions for Hawai`i’s listed plants, it carefully considered the agency’s claims of resource limitations and set a timetable to allow FWS “to address other ESA matters while at the same time address their statutory duties in this case.” To the extent that FWS lacks the financial resources to complete all of its recovery and listing tasks, the court made it clear that it is FWS’ duty to ask Congress for the necessary funds. FWS has consistently failed to do so. Instead, has repeatedly asked Congress to cap its listing budget in an effort to shirk its duty to designate critical habitat, depriving Hawai`i’s endangered and threatened plants of the full range of habitat protection that Congress intended the ESA would provide.

IX. CONCLUSION

Critical habitat has the potential to play an important role in promoting the recovery of Hawai`i’s imperiled plants and the ecosystems on which they depend. However, Hawai`i’s plants cannot reap the significant benefits associated with critical habitat unless FWS first fulfills its mandatory duty under the ESA to designate such habitat to the maximum extent prudent. In responding to FWS’ request for public comment, we urge you to express your support for critical habitat as a vital tool to ensure the continued survival and eventual recovery of our native flora.