<p> IN THE UNITED STATES DISTRICT COURT</p><p>FOR THE DISTRICT OF HAWAII</p><p>SAVE HAWAII’S GREEN SEA ) TURTLES, a non-profit corporation; ) CIVIL NO. 04-12345 (KL) MALAMA NA HONU, a non-profit ) corporation ) Plaintiffs, ) ) ) ) CONCISE STATEMENT OF v. ) MATERIAL FACTS ) NATIONAL MARINE FISHERIES ) SERVICE, NATIONAL OCEANIC AND ) ATMOSPHERIC ADMINISTRATION; ) ) U.S. FISH & WILDLIFE SERVICE, ) U.S. DEPARTMENT OF INTERIOR, ) ) Defendants, ) ) and ) ) ISLAND RESOURCE PARTNERSHIP; ) HAWAII FISHING COALITION; ) KANAKA MAOLI SUBSISTENCE ) COALITION; DIVISION OF FORESTRY ) AND WILDLIFE and DIVISION OF ) AQUATIC RESOURCES, STATE ) DEPARTMENT OF LAND AND ) RESOURCES, STATE OF HAWAII, ) ) Intervenors. ) ) ) ______)</p><p>CONCISE STATEMENT OF MATERIAL FACTS</p><p>The Hawaii Green Sea Turtle (“HGST”) is currently listed under the Endangered </p><p>Species Act (“ESA”), 16 U.S.C. §§ 1531-1544. It was declared a “threatened species” on July 28, 1978. 50 C.F.R. § 17.11. The HGST was listed as threatened prior to the </p><p>December 1978 Amendments to the ESA, Pub. L. No. 95-632, 92 Stat. 3751 (1978), that required the designation of critical habitat concurrently with the listing of the species. 16 </p><p>U.S.C. § 1532(a)(3), see also 50 C.F.R. § 414.12(a). A “threatened species” is defined under section 3 of the ESA as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” </p><p>Id. § 1532(20).1 It was declared a “threatened species” due to “overexploitation for commercial and other purposes, the lack of adequate regulatory mechanisms and effective enforcement, evidence of declining numbers, and habitat loss and degradation.” </p><p>National Marine Fisheries Service, U.S. Dep’t of Commerce & U.S. Fish and Wildlife </p><p>Service, U.S. Dep’t of the Interior, Recovery Plan for the U.S. Population of the Green </p><p>Turtle (1998) (“Recovery Plan”). 2</p><p>The HGST is highly migratory and its range extents 2,400 kilometers from the Main </p><p>Hawaiian Islands (“MHI”) to the French Frigate Shoals (“FFS”). Recovery Plan, at 12. </p><p>The HGST mainly forages on algae near shore along the coastlines of the MHI and then approximately 90% of adult females, 200-700 annually, travel to the FFS to nest. Id. at 7.</p><p>This can involve one-way migrations of up to 1300 kilometers. Id. at 13. Nesting usually occurs at night, from May to August, and adult females return to their birthplace to nest. Anne Rillero, The Return of Kauila, Nat’l Wildlife, June/July 1999 (“Rillero”). </p><p>1 Threatened species are treated identically, except for one minor provision, as endangered species. 50 C.F.R. §§ 17.21, 17.31 (2000). Therefore, the HGST enjoys the same protections as endangered species. Id. As a result, all the prohibitions listed in 50 C.F.R. § 17.21 for endangered species also apply to the threatened HGST. These prohibitions include “taking” HGST. 50 C.F.R. § 17.21. Take is defined under Section 4 of the ESA as to “harass, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in such conduct.” 16 U.S.C. § 1532(19). 50 C.F.R. § 10.12 defines “take” as “to pursue, hunt, shoot, would, kill, trap, capture, or collect or attempt to pursue, hunt, shoot, kill, trap, capture, or collect.” 2 The recovery plan serves as a guideline and provides a detailed analysis of the current status of the Pacific Populations of the Green Sea Turtle. It sets forth recovery criteria, which must be met before the HGST can be de-listed.</p><p>2 Mating between males and females occur offshore. Id. at 43. The HGST grow slowly and researchers have estimated that it may take as long as 25 years for HGST to reach sexual maturity. Recovery Plan, at 14-15. </p><p>The HGST “have a somewhat less dire status” than other green sea turtle populations and there has been an increase in its population. Recovery Plan, at vi. The disease fibropapilloma, however, remains a huge threat to the HGST. Id. at vi. Fibropapilloma causes tumors around the HGST’s eyes, necks, flippers, mouths and internal organs. Id. at 17. It impairs HGST ability to feed, breath, swim, and see, leading to a slow but certain death. Id. at 17. It often strikes HGST when they are young, often before they have had a chance to reproduce. Rillero, at 46. The cause of fibropapilloma is unknown and there is no cure. Recovery Plan, at 18. In certain populations of HGST, 60% are stricken with fibropapilloma, while in other populations around Hawaii it is rare. Rillero, at 46. </p><p>When HGST were first listed as “threatened” in July 1978, there was a provision that allowed taking HGST for “subsistence use” by native people living in the U.S. Trust </p><p>Territories of the Pacific Islands.3 Recovery Plan, at 11. This exemption allowed taking </p><p>HGST that were less than 30 inches for non-commercial subsistence purposes. Id. This exemption for the U.S. Trust Territories was re-affirmed in 1984, but a decision to expand this exemption to Guam, American Samoa, and the State of Hawaii was struck down. Id. </p><p>The HGST plays an important to Native Hawaiians, as well as other Polynesia and </p><p>Micronesia societies, for traditional cultural, religious, and subsistence practices. </p><p>3 The U.S. Trust Territories included the Federate States of Micronesia, Republic of the Marshall Islands, Commonwealth of the Northern Mariana Islands, and the Republic of Palau. These nations, however, are no longer part of the U.S. Trust Territory. </p><p>3 Recovery Plan, at 4. HGST are highly revered and some families regard it as an amakua </p><p>(personal family deity). Rillero, at 44. HGST are also mentioned in folklore, and one example is a turtle named Kauila who has the power to change into human form to watch over children playing near the shoreline. Recovery Plan, at 4. HGST have also been the subjects of many petroglyphs and featured in tattoo designs. Id. at 4. </p><p>In addition, there is a Native Hawaiian Kapu (prohibition) system that strictly regulates both the hunting and consumption of the HGST. Recovery Plan, at 4. This system reserved HGST for royalty and prohibited women from eating turtles. Id. Native </p><p>Hawaiians have many uses for the HGST, ranging from eating the flesh for subsistence, employing the fat for medicinal use, using the shell for containers, and making the bones into kitchen utensils, sewing needles, fish hooks, and agricultural tools. Id. at 4. </p><p>On April 1, 2002, the Marine Law Center submitted a petition, on behalf of Save </p><p>Hawaii’s Green Sea Turtles (“SHGST”) and Malama Na Honu (“MNH”), under the </p><p>Administrative Procedures Act (“APA”) and ESA for critical habitat designation for the </p><p>HGST to the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries </p><p>Service (“NMFS”) seeking designation of critical habitat in: 1) all “inshore” (shoreline seaward to one mile) areas of the MHI (foraging and resting habitat); 2) all “coastal” </p><p>(shoreline seaward to 3 miles) areas of the Northwestern Hawaii Islands (“NWHI”) </p><p>(breeding, foraging, and resting habitat); 3) all beaches with indications of current or historical nesting on the MHI and NWHI; and 4) all beaches with indications of current or historical basking on the MHI and NWHI. NMFS was designated as lead agency and after a substantial comment period, published a final rule in the Federal Register on April </p><p>1, 2003 that denies in part and grants in part Plaintiff’s Petition, to become effective June </p><p>4 1, 2003, and at later dates indicated. Coalition filed a motion to intervene on October 1, </p><p>2003 and the motion was granted. </p><p>5</p>