Monday, January 8, 2001
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Posted on: Monday, January 8, 2001

Lawsuits a catch-22 for agency

By Jan TenBruggencate
Advertiser Columnist

The U.S. Fish and Wildlife Service in Hawaii has in recent years made a consistent complaint when it is sued to force compliance with environmental laws:

It says the lawsuits, instead of helping, are in fact getting in the way of doing the work of protecting endangered species.

They argue that in a time of limited financing, service priorities are driven not by biological imperatives, but by court orders. And, they say, that’s wrong.

Environmental groups who are filing the lawsuits argue that this is specious reasoning — that the lawsuits are required because the work isn’t being done in the first place.

This battle is not unique to Hawaii.

Nationally, the Fish and Wildlife Service last November placed a freeze on the listing of new endangered and threatened species. Its argument: It was spending so much time and money responding to some 140 filed and threatened lawsuits and complying with the resulting court orders that it didn’t have enough left to conduct normal listing activities.

Locally, the Earthjustice Legal Defense Fund is the big dog when it comes to filing suits to enforce the provisions of the Endangered Species Act.

Last week, it filed an action in federal District Court to force the service to designate the critical habitat needed to restore populations of 17 species of Hawaiian forest birds.

Last June, a federal judge in response to an Earthjustice suit ordered the service to designate critical habitat for the Oahu elepaio, a small forest bird. At the time, Earthjustice attorney David Henkin conceded that by itself, designation wasn’t enough: "It’s not a silver bullet. It’s not going to do it alone. But you’ve got to protect the habitat, and you need to designate critical habitat to do that."

The elepaio only got on the endangered species list two months earlier, also in response to an Earthjustice suit that argued that the service wasn’t meeting its own deadlines for action on the bird, whose numbers have declined precipitously in recent years.

Last February, the service was ordered to establish critical habitat for four endangered invertebrates: Blackburn’s sphinx moth of Maui, the state’s largest native insect; and three Kauai species, Newcomb’s snail, Kauai cave wolf spider and the Kauai cave amphipod.

In 1998, Earthjustice won a court order requiring the service to dedicate critical habitat for 245 plant species on all the major islands. That project is still under way, with dozens of plants and tens of thousands of acres proposed as critical habitat.

"Setting aside critical habitat helps focus conservation efforts on areas that are vital for native plants," said Mindy Wilkinson, president of the Hawaiian Botanical Society.

Jan TenBruggencate is The Advertiser’s Kauai bureau chief and its science and environment writer. You can call him at (808) 245-3074 or e-mail

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