Federal planLIHUE -- On Feb. 6, Kauai will become the first battleground in what promises to be a series of fights over a U.S. Fish and Wildlife Service effort to designate critical habitat for 245 endangered Hawaiian plant species throughout the state.
for critical habitats
The plan to reserve land for
endangered plants prompts debate
over what it means, and
if it will work
By Anthony Sommer
The Fish and Wildlife Service is designating the areas in compliance with a 1998 U.S. District Court order requiring the work to be completed by April 30, 2002. The agency was sued in 1997 by the EarthJustice Legal Defense Fund and numerous environmental groups that accused it of violating the Endangered Species Act by failing to make the habitat designations.
Starting with Kauai and Niihau, the Fish and Wildlife Service has made public maps setting designated critical plant habitat. Designations for all of the islands except Oahu and the Big Island have been completed.
The Fish and Wildlife Service said it has little discretion because it is basing its critical-habitat designations on where the plants are growing today and where they are known to have grown in the past.
The state Forestry Division responded by strongly opposing the plan and asking the Fish and Wildlife Service for a public hearing on the Kauai and Niihau Plan, which designates 60,000 acres as critical habitat. Included are all of Kokee and Waimea Canyon state parks, which have many of the best hiking trails in the state and host more than 1 million visitors annually. Also included are 17,000 acres of private land.
The state wants the habitat designations limited to much smaller areas.
"In any other state, if more than 10 percent of the land mass is designated as critical habitat, there would be a tremendous uproar," said state Forestry Director Mike Buck. At the request of the Forestry Division, a public hearing on Kauai has been scheduled for Feb. 6.
"I hope, after Kauai, the state will wake up to what the federal government is trying to impose on it," Buck said.
'Biologically deficient'At the same time, Keith Robinson sent a scathing 14-page letter to the Fish and Wildlife Service saying the entire habitat designation is a complete waste of time and money. Endemic plants living in the wild already are doomed by the invasion of alien animal and plant species, he said. The only hope for their survival is the creation of preserves where the plants can be cultivated and protected.
Robinson has spent much of the past 20 years cultivating nearly-extinct plants at his private preserve in Kokee. He and his brother Bruce Robinson own the island of Niihau, where critical habitat has been designated.
"Hawaii's endangered plant species will not be saved by the designation of critical habitat," Robinson said.
Hawaii's endemic plant species arrived tens of millions of years ago and evolved in a habitat where other plants did not compete for space, no animals fed on them and no plant diseases existed. Over time they lost the natural defense that their cousins elsewhere still retain.
The introduction of alien plants brought competition to the native plants, which Robinson terms "biologically deficient" and unable to compete with the new arrivals. And non-native insects, birds and animals ultimately will destroy the few survivors, he said.
"I can flatly state that Hawaii's endangered plant species are absolutely not capable of maintaining naturally self-sustaining populations in the wild," Robinson said.
Both Buck and Robinson say the Fish and Wildlife Service and the EarthJustice Legal Defense Fund -- which forced the issue with its lawsuit -- are on the wrong track if they want to preserve Hawaiian plants. Both suggest moving the plants to isolated, protected areas rather than trying to preserve habitat where many of the plants already have lost the battle to survive.
"The habitat for many plant species simply no longer exists because they've already been developed or altered," Buck said. "If a plant's natural habitat is gone, the basic concept of critical habitat may need to be considered differently in Hawaii."
Dispute over meaningBeyond the dispute over whether the designations will help save the plants, there is major disagreement in how the designations affect use of the land involved.
The Fish and Wildlife Service insists it applies only to activities by federal agencies.
"It regulates the federal government's own behavior. It doesn't affect the state or the counties. And you can cut down an endangered plant on private land without being in violation of anything," said Paul Henson, field supervisor for Fish and Wildlife's Pacific Islands Region. "An endangered plant does not have the same protection as an endangered animal."
And even on federal projects, the designation has only limited effects, Henson said: "You can affect critical habitat, but you cannot adversely modify it to an extent that it precludes recovery of the species."
The federal agency most immediately affected will be the Defense Department because some military training areas will be included in the critical habitat areas, Henson said.
But Buck and other state officials insist the designation goes way beyond federal agencies and their activities. They quote what they see as key wording in Fish and Wildlife literature: "Federal agencies are required to ensure that any activity they fund, carry out or authorize is not likely to jeopardize the survival of a listed species or destroy or adversely modify its critical habitat."
They say the operative term is "fund." Almost every state and county program -- from road building to school field trips -- uses federal funds and will be subject to the same limitations as federal agencies, they believe.
"(The) same process will be required for all activities on state, county or private lands when any federal permit, license or funding is required," Buck said. The Forestry Division's program to expand and refurbish hiking trails relies heavily on federal grants, for example.
Buck said he recognizes that because of the court order critical habitat designations must be made.
But exactly how much land is designated is up to the Fish and Wildlife Service.
And the Earthjustice Legal Defense Fund contends the designation goes far beyond activities of federal agencies.
In a lengthy fact sheet distributed by the agency, the organization said the designation specifically applies to federal funding to the state for hunting and game management and to "federally funded infrastructure, such as roads, sewage plants and airport expansion."
"Critical habitat is not a restriction on the use of private property unless it involves the use of federal funds or a federal permit," EarthJustice attorney Paul Achitoff said.
An island-by-island breakdown
of proposed critical-habitat areas
The U.S. Fish and Wildlife Service is proposing critical-habitat areas for endangered native plants on all of the Hawaiian Islands. The proposals have been made public, island by island, over the past several weeks. Plans for Oahu and the Big Island have yet to be unveiled. Here is a rundown of the proposals released so far:
KAUAI AND NIIHAU:Twenty-one critical-habitat areas comprising almost 61,000 acres are proposed for 76 plant species. Habitat for 19 other species was not proposed because the plants either no longer occur on Kauai, are believed to be extinct or because publication of the location of the plants may lead to vandalism. Two areas are proposed on Niihau. A public hearing is scheduled for Feb. 6. The deadline for written public comment has not been established, but will be after the public hearing.
MAUI AND KAHOOLAWE:Fifty-two critical-habitat areas comprising almost 34,000 acres are proposed for 50 plant species on Maui. Critical habitat was not proposed for four species, because they already are protected by the National Park Service or The Nature Conservancy. Four areas totalling 511 acres were proposed on Kahoolawe. The deadline for public comment is Feb. 17.
LANAI:Ten critical-habitat areas comprising almost 5,000 acres are proposed for 18 plant species on Lanai. No habitats were designated for 19 species because they either are included in other areas, are extinct or their locations are unknown. The deadline for public comment is Feb. 25.
MOLOKAI:Twenty-eight critical habitat areas comprising just over 15,000 acres for 32 plant species was proposed. No habitat areas were proposed for seven species because the areas where they are growing are permanently protected by The Nature Conservancy. The deadline for public comment is Feb. 28.
Source: U.S. Fish and Wildlife Service