May 23, Kaua`i War Memorial auditorium: The interrogation started at about a quarter to 7:00 that Thursday night, well before the panel had assembled on stage to help clear the haze surrounding the proposed designation of 99,200 acres of the island as critical habitat.
A peevish older man sidled up to Paul Henson, field supervisor for the Honolulu office of the U.S. Fish and Wildlife Service. “I just have one question,” he asked. “Why do you want to close off such a large area?”
Henson’s short reply: “We want to make sure that if we get sued again, we don’t lose.”
For the last decade, the Fish and Wildlife Service has been defending itself in court against two lawsuits alleging it had failed to protect Hawai`i’s rare plants. The first was brought in the early 1990s and ended with the service being required to place on the federal endangered and threatened list hundreds of Hawai`i’s plants. When the service did not then take the second step, required under the Endangered Species Act, to protect plants by designating critical habitat for them, it was sued again in early 1997. In 1998, a federal judge ordered the service to follow the law and designate critical habitat, areas deemed essential for the plants’ survival and eventual recovery. Plaintiffs in that lawsuit were the Conservation Council for Hawai`i, the Sierra Club, and the Hawaiian Botanical Society. Representing them in court was Earthjustice Legal Defense Fund.
In 2000, the service came out with its initial proposals that, on Kaua`i and Ni`ihau, designated about 66,000 acres of critical habitat for 95 endangered plant and invertebrate species on Kaua`i. A year later, after receiving testimony from the public, the service came out with a revised proposal for 83 species totaling nearly 100,000 acres on the two islands. Some two-thirds of the designated area is owned by the state; of the remainder, almost all is in private hands.
While Henson’s reply to the older man’s question was short, it was incomplete. Critical habitat designation does not “close off” areas at all. Rather, it simply requires any activity with a federal nexus – for example, involving federal permits, funded with federal dollars or supported with federal personnel – to be done only after consultation with the service intended to mitigate or avoid damage to the habitat.
May’s meeting at War Memorial Stadium was called by Concerned Citizens of Kaua`i and Ni`ihau, a self-described grass-roots group formed after a February hearing on the proposal, sponsored by the Fish and Wildlife Service, ended up as a “bloodbath,” in the words of one witness. Attending the May meeting as invited panelists were Henson; Mike Buck of the state Department of Land and Natural Resources’ Division of Forestry and Wildlife; Karen Blue of the Conservation Council of Hawai`i, Chipper Wichman of the Limahuli Garden; landowner Keith Robinson; and Kaua`i legislator Jonathan Chun. Pointedly not invited was David Henkin, the Earthjustice attorney who litigated the case. The panelists fielded questions for more than three hours from moderator Jay Robertson of Kaua`i public access television and from an audience composed mostly of irate hunters.
When all was said and done, many in the audience were no more at ease with the process than they were when they arrived. But while it may have made little headway clarifying the issues of critical habitat, everyone agreed it was an improvement over the first public hearing, in 2001, where hunters raged nonstop, and the second one, in February 2002, that went pretty much the same way. This time, at least, questions were answered and the public was engaged in a discussion.
Serving Many Masters
“Any time you try to designate critical habitat for 255 species, it’s going to be a public relations issue,” says Henkin, the Earthjustice attorney. Hunters worry that they will be kept out of areas. Landowners worry that the designation will open the door to intrusion on their property and a governmental “taking.”
The concerns raised at the Kaua`i panel meeting in May are found on all the islands, Henson says. And his division needs more time to address them.
The deadline for final habitat designation on Kaua`i is supposed to be this month. But by all accounts, that won’t happen and the service has asked Earthjustice to agree to ask Federal Judge Alan C. Kay to extend the deadlines for Kaua`i and other islands by as much as six months. The extra time is needed, the service says, to complete the required economic analysis, and to do more ground-truthing and consultation with landowners.
Henkin says his clients would like to give the service the time it needs, but “we don’t want indefinite delay.” There have already been three rounds of extensions since the court set deadlines in 1998.
One of the conditions Earthjustice is requiring of any extension is that the service engage in a “real dialogue with public on these rules so the public can have a better understanding of how critical habitat will affect them in their daily lives,” Henkin says.
The formal public hearings, where testimony is collected, are not designed for interaction. When questions are asked, no answers are given, resulting in a frustrated public, Henkins says. The few supplemental meetings the service has sponsored to address that frustration have been held at inopportune times, such as during work days, he says.
As part of deadline extension negotiations, Henkin has asked the service to commit to holding minimum ten public workshops, two each on O`ahu, Kaua`i, Maui and Hawai`i and one each on Moloka`i and Lana`i. He’s asked that they be at least four hours long, and held on evenings or weekends so people can show up.
The service’s initial response has been promising, but the parties “don’t have a final deal yet,” he says.
Henson agrees with the goal. “We’re trying to make it a process where everyone can have as much input as reasonably possible,” he says, but adds: “There are legal restrictions on all of thatÉ We are serving many masters here. We’re serving the court deadline, we’re serving the funding limitation, we’re serving the will of the local community, we’re serving the will of some of the interested political and landowner parties. We’re serving many groups trying to meet their needs.”
Sorting Through
Controversy surrounding critical habitat can generally be separated in two categories: the process of designation itself, and its effects.
“The problem with critical habitat is it’s a very nuanced issue. It doesn’t make a good sound bite,” Henkin says.
“At Q&A sessions on some of the islands, the service has answered landowner questions with a standard response of, ‘We can’t tell you.’ How do you expect them to react other than by being freaked out?” Legally, the service’s hands are tied: its representatives at these meetings, such as Henson, cannot give specific answers to ‘what if’ questions without a long process of consulting with attorneys and supervisors.
“At the same time,” Henkin adds, “they can be specific about the types of factors they’re looking for and É tell the community what will and will not be affected.”
If Henson does get approval for the hours-long workshops Henkin is asking for, a more thorough explanation of the process might go something like this:
The Fish and Wildlife Service must first identify potential areas essential to the conservation of the listed species by collecting all the scientific and landscape information it can. Then it maps the area of proposed critical habitat and shows it to the public in draft form. The public responds with its comments and then the service incorporates those comments, when appropriate, in revising the proposed maps into final form. The process is the same throughout the country. What makes Hawai`i different is the sheer number of species the service has to address. Of the 743 plants on the Fish and Wildlife Service’s endangered and threatened list, 255 are in Hawai`i.
“The difference here in Hawai`i is, first, we’re dealing with 255 plants and a few invertebrates. It’s a quarter of endangered species in the United States. It’s huge, just sheer magnitude of it, it’s a very difficult process,” Henson says. “Number two, we have to do it on a court-ordered time frame. On a single-species basis, that would be no problem. But when you’re dealing with this many species, in that amount of time it’s really, really difficult.
“Three, we have funding limitations. Congress appropriates a certain amount of money for listing and critical habitat and we can’t spend any more than that. So the money is parceled out very sparingly. We’re using it as efficiently as we can, but it’s a big undertaking for money that’s spread thinly across the entire United States.
“And four, Hawai`i is a small community and there is a reasonable expectation on the part of communities and stakeholders that we work these things out together, which is really, actually a great thing.”
But opportunities for collaboration are limited to the kinds of scientific, economic and social information that the service can use, Henson says.
Recovery
After the February hearing, Representative Patsy Mink criticized the service as lacking scientific support for its proposed critical habitat designations statewide. In remarks published in the May 20 Congressional Record, she lambasted the service for having “merely produced a textbook variety plan for all the species and [drawing] arbitrary lines around the sites and [coming] up with a compound consisting of 99,000 acres, nearly one-third of the island of Kaua`i.”
She then proposed an amendment to the Endangered Species Act that would impose a moratorium on all critical habitat designation in the state until such time as the Secretary of the Interior had developed recovery plans for each species included in the habitat and the designation had been reviewed by the National Academy of Sciences.
Recovery plans, also required under the Endangered Species Act, identify the actions needed, although not required by anyone, for species to come back to the point they can be de-listed. Critical habitat includes area essential to the conservation of the species. “So conservation and recovery are similar,” Henson says, but the areas that may be identified in a recovery plan may not be the same as those mapped as designated critical habitat.
“Critical habitat is essentially a landscape exercise. Recovery planning includes a landscape component if you have the information. There are crude maps in the recovery plan, but there’s not the detailed maps that you get in critical habitat mapping,” Henson says.
Henson may think Mink’s concerns are unwarranted. Mike Buck of the state Forestry Division disagrees.
The Fish and Wildlife Service “sent us in October 2000 their proposal for 63,000 acres [of critical habitat on Kaua`i]. We agreed with a whole bunch of it, areas where these things have been zoned up 14 times. I mean they’re [zoned] conservation, they’re protection Éso fine.” But where degraded areas were proposed, he says, he and his staff were concerned.
“The service took a very mechanical approach,” he says. “We know little or nothing about many of these plants or their reproductive biology, how much space they need, all these kinds of basic things. They took general geographic relationships that plants need — talus slopes, so much rainfall — they took these broad physical constituentsÉ and then they used a lot of historical data of where the plants used to be or are. Based on that, they took a very mechanical approach of drawing lines around areas where the plants were.” After that, he continues, the service people “just pulled out of the air [the idea that] every plant needs to have eight populations and so much space between each one.”
Buck says a lot of the designated area has been changed or degraded. “The features of the habitat are really gone. For instance, for some of our plants we don’t have many of the native pollinators. And there are other factors in the habitat like free-ranging animals, weeds, fire problems… And these things are now naturalized. They’re not going away. Invasive weeds are not going away. Fire problems are there. I can’t snap my fingers and say, ‘All pigs and goats, leave.’ÉThese are naturalized limiting factors. And we don’t care how big you draw a line, if you cannot manage these things, you’re never going to recover the plant.”
In response to the Fish and Wildlife Service’s first proposal in 2000, DOFAW came up with its own map, based on what Buck calls the “science of recovery.” Buck says he gathered his best people together to assess and map pristine native areas within critical habitat and measures needed to control threats.
Using the state Natural Area Reserves as an anchor, “We carved out some big pieces,” Buck says. “You know what Waimea Canyon looks like. I don’t care how big a line you draw, where is it that you can actually lay a fence line, an eight-foot deer fence? On what ridges can you put things in and really commit? ÉWe tried to take as big a piece [as we could] with as much micro-site variation. And this runs from the top of Koke`e down to the ocean.”
When a year later the service expanded the proposed area on Kaua`i to 99,000 acres, Buck said it was an insult.
“They took this huge area and forced the state to disprove their approach. That’s why we were shocked a year after we offered this,” he said, referring to DOFAW’s proposal. “We said, ‘Let’s work together.’ And they came out with a proposal for 100,000 acres. And that’s just when I said this is out of control. They were taking acres of unoccupied habitat for extinct plants.”
“We didn’t agree that it was the best available science. And we even talked to Paul’s boss and Paul’s boss’s boss that we were going to bring a blue ribbon task force to take a look at the science and use Kaua`i as a model to have a nice debate about what is the science.”
Henson acknowledged that the issue of degraded habitat “has been debated — whether there is a level of degradation of habitat beyond which it’s not restorable and therefore shouldn’t be considered as critical habitat.”
To address these issues, the service has sent letters to experts outside the agency, asking them, among other things, if the critical habitat designation includes too much area or not enough, if it covers a good range of habitat types, and if it has identified populations correctly.
Forcing the State
Whatever the final designation, Buck is convinced that it will pressure the state to build more fences and do more to control fires and invasive species.
“Once something is designated critical habitat, all the pressure for any development or any action on adjacent lands with a federal permit, even if it’s not critical habitat, will now be focused,” Buck says. “Pressure will come from government, from environmental groups, from anyone who wants to use this.”
To this, time and again, Henson responds that without a federal nexus, critical habitat probably won’t affect any project or activity.
Henson does admit that by designating critical habitat, the Fish and Wildlife Service is highlighting areas important to the conservation of the species. “So to the extent that that raises or creates an expectation by the public to do something about it, he [Buck] is maybe right about that.” But as to designation forcing people to do anything, Henson says, “other than the federal government, when it’s regulating other federal entities, [designation] doesn’t” require anything of anyone.
Buck disagrees. “I’ve told Paul, ‘You’re being very factually accurate. But you know that’s not what happens in other states. You know how these things are utilized. Anyone who wants to stop a project, whether it’s a good project or a bad project, is going to have some ammunition.'”
Henkin believes Buck is confusing “offense with defense.”
“Mike thinks in terms in what’s going to be required of him in terms of offense, on-the-ground recovery. But critical habitat is defense against federal projects from further degrading ecosystems. Mike says the proposal is overly ambitious, beyond his division’s current capabilities. Good. Critical habitat is not a short-term game plan, it’s the long-term game plan. What critical habitat does is protect an area so that when DOFAW and the FWS get around to [protecting] those areas, the feds will not have made situation worse. At most it gives additional information about areas, so DOFAW can lobby the Legislature for more funds” to protect them.
As far as concerns that designation will drive still more litigation, Henkin says, “You can generate as much hysteria as you want about how people might abuse the process. But who’s going to represent them? Not EarthjusticeÉ. You’ve got to find a lawyer to file a frivolous lawsuit.”
Despite Henkin’s assurances, the economic analysis of designation prepared for the Fish and Wildlife Service uses the Palila case as grounds to assume that people might claim degrading critical habitat is a form of taking. Palila was a federal lawsuit against the state that alleged that sheep, managed as game mammals by the state, were devouring the Palila birds’ mamane-tree habitat on Mauna Kea. The destruction of mamane trees was found to be an illegal taking of the bird. The economic analysis, written mostly by Bruce Plasch of Decision Analysts Hawai`i, Inc., asserts that, while the federal law does not extend taking to plants, state law does, thus opening the door to litigation.
Henkin admits it’s possible someone could bootstrap state law to a federal claim. But, he stresses, the key relevant fact would not be critical habitat, per se, but the reliance on that habitat by an endangered or threatened plant.
“It’s not that it’s critical habitat… It’s the fact that, scientifically, [the area] has been determined to be important. A lot of the big hoopla is over unoccupied habitatÉconfusing legal status with factual issues of whether areas are [necessary for existence],” he says. Critical habitat alone is “not going to cut the mustard of legal claim. You need scientific proof. Critical habitat is not going to make this case easier to win.”
Fear Control
Despite the reassurances of Henkin, private landowners often voice the concern that if their land is included in designated critical habitat, they will face increased risk of litigation for actions they may take that alter the landscape.
Still, Henson says most landowners are not completely averse to having critical habitat on their property. “I’m very impressed with the level of good faith and good will a lot of landowners have expressed for trying to save species. Alexander & Baldwin, Grove Farm, Maui Land & Pineapple. Some of the ranchers — Ulupalakua, Haleakala. All these people say and have shown by their actions that they’re doing things for endangered species on their propertyÉ But, they also have legitimate business and economic concerns that they want to make sure get factored into the mix.”
Some of the landowners aren’t as much concerned with federal regulation as they are with the prospect of the state or county rezoning their land as a consequence of the designation into more restrictive land-use classifications. That and the third-party lawsuit threat are fairly speculative, Henson says, “but are nevertheless legitimate concerns.”
Landowners also worry that designation could lower the value of their property. “I guess in some areas where the ability to develop the land is perceived by the market to be restricted, then property values could go down. Likewise, if the areas are identified as being valuable for certain kinds of conservation values, that can drive values up. Certainly it’s been shown that if you have property near a conservation area, property values can increase. It can cut both ways,” he says.
All of these issues have the FWS and the state worried that the process may scare away potential private conservation partners.
“The largest, most significant conservation efforts in the whole state are watershed partnerships,” Buck notes. “They’re voluntary agreements based on common values with no regulatory impetus at all. Is there anything we can learn from that? You tell me how I work through this process and utilize it to inspire the other side,” Buck says.
Henson acknowledges Buck’s concern on this point, but points out that the service spends millions of dollars each year in Hawai`i on various partnerships and conservation projects, including watershed partnerships and recovery efforts by the state. Nonetheless, the possibility that critical habitat will scare away private participation in these projects is “something the Fish and Wildife Service, raised as part of our original reason for not wanting to do critical habitat in the first place hereÉ. We argued that to the court to some extent and it’s still a very real concern,” Henson says.
The loss of private management partners “would be a real sad thing if that was a consequence of this,” he continues. “I’m doing everything I can to work with a lot of those folks to try and minimize that possibilityÉ Just getting landowners to feel that they can restore or reintroduce endangered species onto their property or maintain endangered species that are on their property is a huge challenge. And on top of that, for this perceived regulatory thing to come slamming down on them definitely angers them and makes it more difficult for them to trust us. It makes them question, ‘What’s in it for me and my children?'”
The Bigger Picture
There are about 4,700 licensed hunters living on Kaua`i. And they have been even more vocal than landowners in their opposition to proposed designation of critical habitat. In the most recent year for which statistics are available (fiscal year 2000-2001), hunters on Kaua`i public lands made 13,139 trips for game mammals and 2,020 trips for game birds. Buck and Henson regard their concerns as just as important as the landowners’.
For Buck at least, the hearings sponsored by the Fish and Wildlife Service do little to advance understanding among the parties. “The environment is a pretty fringe issue in this state,” he says. “Endangered species is not an issue most people care about and it’s usually presented in a pretty antagonistic way.”
The kind of meetings the Fish and Wildlife Service sponsors do little to build the support needed to save endangered species, he continues. “Where we really want to get serious [about saving species], we’re going to have to put up fences and get rid of the animals.” And for that, he says, the state will need the cooperation of hunters. “We have 20,000 hunter trips a year,” he notes. “If we totally demoralize these people, who the hell’s going to control all the animals?”
Henson also feels the need to find some common ground between environmentalists and hunters.
“Our position on game mammal management and hunting has been overshadowed by the critical habitat issue,” he says. “We unequivocally support the continuation of game mammal hunting in Hawai`i forever. We think it’s a really important cultural, economic, social activityÉ But, it has to be managed in such a way that’s compatible with endangered species recovery. And if we fail to do that, we’re just going to continue to have more third-party lawsuits under either the federal or state laws.”
To avoid that, the state must find a way to “make the two live together on the islands at a landscape level,” he says. “If we can figure that out, I’d be all for setting aside areas for hunting that are managed for hunting, to increase pigs or increase goats or increase sheep, but we’d have to plant papaya trees or something to feed to pigs or avocado trees or other forage food, which we do for white-tailed deer in Illinois. But at the same time we have to have areas that are managed primarily for endangered plants.”
Henson says the process of designating critical habitat has made reaching that compromise more difficult. It’s “perceived as this anti-hunter thing, and so it overshadows the bigger picture we’re trying to promote, which is let’s work on a strategy on the landscape togetherÉ We think we can have both, but we can’t have both overlapping one another completely as it is now. If you look at the hunting units, they’re overlapping a lot of the most important plant areas.”
The state, for the most part, does its best to reduce ungulate impacts on endangered species by managing hunting, Henson says, by “using it as a tool. There is an important role for hunting to play in that regard.”
But hard decisions are still needed. “The hunters help out on the endangered species end, and the plant people, the endangered species people, help out and accept these areas are going to be for hunting and support it.”
Henkin also feels a consensus is needed if Hawai`i’s endangered plants are to be restored to healthy populations.
“As with all environmental issues, it’s important to get public buy-in so we can get the benefits of the designationÉ As far as recovery, we’re only going to do that as long as there’s public support for it.”
— Teresa Dawson
Volume 13, Number 1 July 2002
Leave a Reply