Aina Nui Corp. v. Jewell
52 F. Supp. 3d 1110
D. Haw.2014Background
- ANC challenged FWS's Sept. 18, 2012 Final Rule designating Oahu—Lowland Dry Unit 8 as critical habitat for 16 listed species, including the ‘akoko, affecting 96 acres of ANC land within the Kapolei West project.
- Final Rule used an ecosystem-based approach to identify PCEs and to determine essential features, including coral outcrop substrate for ‘akoko.
- Service conducted site visits in 2011 and 2012 and relied on a Recovery Strategy and other data to support designation, with public comment periods preceding the Final Rule.
- ANC argued that the 2012 Recovery Strategy and the June 2012 Site Visit Report were new, critical information that required reopening public comment; the Court found they did not introduce critical new information after comment periods.
- The court held the Service adequately considered economic impacts in the Final Economic Analysis (FEA), including potential property-value effects, and rejected ANC’s NEPA challenge by applying the controlling view that NEPA does not apply to critical habitat designations.
- The action culminated in an order denying ANC’s summary-judgment motion and granting the Service’s cross-motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| APA/ESA compliance with record disclosures | ANC contends documents were withheld | Service relied on existing record, not new material | ANC's argument rejected; no violation found |
| Impact of Recovery Strategy and June 2012 report on comment period | Recovery Strategy and June 2012 report added critical new info | Not new or critical information requiring reopening | Recovered information not critical; no reopening needed |
| Use of ecosystem approach to define PCEs | PCEs should be species-specific, not ecosystem-based | Ecosystem approach consistent with ESA and data; PCEs identified for each species | Ecosystem approach upheld; LDU-8 PCEs established |
| Whether LDU-8 meets statutory critical-habitat standards | LDU-8 lacks essential PCEs and is not essential for conservation | LDU-8 contains coral-outcrop substrate PCE and essential features; essential for several species | LDU-8 designated consistent with law; essential for conservation |
| Economic impacts and NEPA applicability | Economic impacts undervalued; NEPA applies | ESA requires only consideration of economic impacts; NEPA does not apply to critical habitat | Economic impacts considered; NEPA not applicable to this designation |
Key Cases Cited
- Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995) (reopening comment period when new data is critical to decision)
- Kern County Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006) (post-comment data may be supplementary if not critical to decision)
- San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014) (deference to agency science; best available data standard)
- Cape Hatteras Access Preservation Alliance v. U.S. Dep’t of the Interior, 731 F. Supp. 2d 15 (D.D.C. 2010) (statutory review of agency discretion not to exclude)
- Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th Cir. 2014) (NEPA-related considerations in agency decisions)