throbber
Julian Aguon (GU Bar No. 09081)
`BLUE OCEAN LAW, P.C.
`134 W Soledad Ave., Ste. 400
`Hagåtña, GU 96910
`Phone: (671) 472-2583
`Email: julian@blueoceanlaw.com
`
`Maxx Phillips (HI Bar No. 10032)
`pro hac vice application forthcoming
`CENTER FOR BIOLOGICAL DIVERSITY
`1188 Bishop Street, Suite 2412
`Honolulu, HI 96813
`Phone: (808) 284-0007
`Email: mphillips@biologicaldiversity.org
`
`Amy R. Atwood (OR State Bar No. 060407)
`pro hac vice application forthcoming
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 11374
`Portland, OR 97211
`Phone: (917) 717-6401
`Email: atwood@biologicaldiversity.org
`
`Attorneys for Plaintiff
`
`CENTER FOR BIOLOGICAL
`DIVERSITY, a non-profit corporation,
`
`
`Plaintiff,
`
`
`
`v.
`
`DEBRA HAALAND, in her official
`capacity as Secretary of the Interior;
`
`
`Case No.:
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 1 of 22
`
`
`UNITED STATES DISTRICT COURT
`OF GUAM
`
`
`
`

`

`U.S. FISH AND WILDLIFE SERVICE,
`an agency of the U.S. Department of
`Commerce;
`
`
`and
`
`
`MARTHA WILLIAMS, in her official
`capacity as the Principal Deputy Director
`of the U.S. Fish and Wildlife Service;
`
`
`
`Defendants.
`
`
`
`
`
`
`INTRODUCTION
`
`1.
`
`In this civil action for declaratory and injunctive relief, Plaintiff
`
`Center for Biological Diversity (“the Center”) challenges the failure of the
`
`Secretary of the Interior and the U.S. Fish and Wildlife Service (collectively, “the
`
`Service”) to designate critical habitat for fourteen species of plants and nine
`
`species of animals in Micronesia, as required under the Endangered Species Act
`
`(“ESA”), 16 U.S.C. §§ 1531-1544. The Service’s failure to timely designate
`
`critical habitat violates its mandatory duty under section 4 of the ESA, 16 U.S.C. §
`
`1533, and deprives these imperiled species of vitally important protections in their
`
`most essential habitat areas. Compliance with this mandatory and non-
`
`discretionary duty is necessary to ensure the continued survival and eventual
`
`recovery of these vulnerable species.
`
`
`
`2
`
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`
`

`

`2.
`
`On October 1, 2015, the Service determined endangered status for 16
`
`plant and animal species from the Mariana Islands: Eugenia bryanii; Hedyotis
`
`megalantha (pao dedu Ch,1 pao doodu CI2); Heritiera longipetiolata (ufa
`
`halumtanu Ch, ufa halom tano CI); Phyllanthus saffordii; Psychotria malaspinae
`
`(aplokating palaoan Ch / CI); Solanum guamense (Biringenas halumtanu Ch,
`
`birengenas halom tano CI); Tinospora homosepala; Emballonura semicaudata
`
`rotensis (Pacific sheath-tailed bat (Mariana subspecies), payeyi Ch, paischeey CI);
`
`Emoia slevini (Slevin’s skink, Marianas Emoia, Marianas skink, gualiik halumtanu
`
`Ch, gholuuf CI); Hypolimnas octocula marianensis (Mariana eight-spot butterfly,
`
`ababbang Ch, Libweibwogh CI); Vagrans egistina (Mariana wandering butterfly,
`
`ababbang Ch, Libweibwogh CI); Ischnura luta (Rota blue damselfly, dulalas Luta
`
`Ch, dulalas Luuta CI); Partula gibba (humped tree snail, akaleha Ch, denden CI);
`
`Partula langfordi (Langford’s tree snail, akaleha Ch, denden CI); Partula
`
`radiolata (Guam tree snail, akaleha Ch, denden CI.); and Samoana fragilis (fragile
`
`tree snail, akaleha dogas Ch, denden CI). 80 Fed. Reg. 59,424, 59,427 (Oct. 1,
`
`2015). The Service also determined threatened status for seven plant species from
`
`the Mariana Islands and greater Micronesia in the U.S. Territory of Guam, and the
`
`U.S. Commonwealth of the Northern Mariana Islands (“CNMI”): Bulbophyllum
`
`
`1 “Ch” denotes the name of the ESA-listed species in the Chamorro language. 80 Fed. Reg.
`59,427 tbl. 1.
`2 “CI” denotes the name of the ESA-listed species in the Carolinian language. Id.
`3
`
`
`
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`
`

`

`guamense (wild onion siboyas halumtanu Ch, siboyan halom tano CI); Cycas
`
`micronesica (fadang Ch, faadang CI); Dendrobium guamense; Maesa walkeri;
`
`Nervilia jacksoniae; Tabernaemontana rotensis; and Tuberolabium guamense. Id.
`
`at 59,424.
`
`3. When the Service lists a species as endangered or threatened, it must
`
`concurrently designate critical habitat for that species, to the greatest extent
`
`prudent and determinable. 16 U.S.C. § 1533(a)(3)(A)(i). Under limited
`
`circumstances, the Service may extend that deadline to no more than one additional
`
`year. Id. § 1533(b)(6)(C)(ii).
`
`4.
`
`Despite this non-discretionary statutory requirement, to date, the
`
`Service has not designated critical habitat for any of the above listed species, as
`
`required by section 4 of the ESA.
`
`5.
`
`The Service’s failure is all the more egregious due to the fact that it
`
`has recognized that these species’ habitats are being devasted by “land conversion
`
`by agriculture and urbanization, habitat destruction and modification by nonnative
`
`animals and plants, fire, the potential alteration of environmental conditions
`
`resulting from climate change, and compounded impacts due to the interaction of
`
`these threats.” 80 Fed. Reg. 59,460-61. This habitat destruction, in addition to
`
`other threats, has left these endemic species, which persist in low numbers across
`
`
`
`4
`
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`
`

`

`restricted ranges, highly vulnerable and in danger of extinction throughout their
`
`entire range. Id. at 64,686.
`
`6.
`
`The very existence of these 23 imperiled species remains at risk until
`
`the Service fulfills its mandatory statutory duties.
`
`7.
`
`The Service’s failure to timely designate critical habitat for these
`
`fourteen species of plants and nine species of animals in Micronesia violates
`
`section 4(a) of the ESA, 16 U.S.C. § 1533(a), and alternatively constitutes agency
`
`actions unlawfully withheld and unreasonably delayed under the Administrative
`
`Procedure Act (“APA”), 5 U.S.C. § 706(1). Accordingly, the Center brings this
`
`action against the Service to (1) secure declaratory relief that the Service is in
`
`violation of the ESA for failing to timely designate critical habitat, and (2) compel
`
`performance of its mandatory duties to designate critical habitat according to a
`
`timeline established by the Court.
`
`JURISDICTION AND VENUE
`
`8.
`
`The Court has jurisdiction over this action pursuant to 16 U.S.C. §§
`
`1540(c) & (g) (action arising under the ESA and citizen suit provision), 28 U.S.C.
`
`§ 1331 (federal question), 5 U.S.C. § 702 (APA), and 28 U.S.C. § 1361
`
`(mandamus).
`
`
`
`5
`
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`
`

`

`9.
`
`The relief sought is authorized by 28 U.S.C. § 2201 (declaratory
`
`judgment), 28 U.S.C. § 2202 (injunctive relief), 16 U.S.C. § 1540(g) (citizen suit
`
`provision of the ESA), and 5 U.S.C. §§ 701-706 (APA).
`
`10. By written notice sent on August 26, 2019, the Center informed
`
`Defendants of their violation more than sixty days prior to the filing of this
`
`Complaint, as required by the ESA. 16 U.S.C. § 1540(g)(2). Despite receipt of the
`
`Center’s notice letter, the Service has failed to remedy its violation of the ESA.
`
`11. Venue is proper in the U.S. District Court of Guam pursuant to 28
`
`U.S.C. § 1391(e)(1)(B) because a substantial part of the events or omissions giving
`
`rise to the claim occurred in this judicial district.
`
`12. An actual, justiciable controversy exists between the parties within the
`
`meaning of the Declaratory Judgment Act. 28 U.S.C. § 2201.
`
`13. The Center has no adequate remedy at law. The Service’s continuing
`
`failure to comply with the ESA will result in irreparable harm to these fourteen
`
`species of plants and nine species of animals in Micronesia, to the Center and the
`
`Center’s members, and to the public. No monetary damages or other legal
`
`remedies can adequately compensate the Center, its members, or the public for this
`
`harm.
`
`14. The federal government has waived sovereign immunity in this action
`
`pursuant to 16 U.S.C. § 1540(g) and 5 U.S.C. § 702.
`
`
`
`6
`
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`
`

`

`PARTIES
`
`15. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a non-profit
`
`501(c)(3) conservation organization with more than 84,000 members, including
`
`members who reside in the Mariana Islands, including Guam, with a direct interest
`
`in the survival and recovery of threatened and endangered species. Through
`
`science, policy, and environmental law, the Center is actively involved in species
`
`and habitat protection issues throughout the United States and abroad, including
`
`efforts related to the Mariana islands’ imperiled plant and animal species, and the
`
`effective implementation of the ESA. The Center is highly dedicated to conserving
`
`fragile and impacted ecosystems and the species that depend on them. The
`
`Center’s members and staff have researched, studied, observed, and sought
`
`protection for these fourteen species of plants and nine species of animals in
`
`Micronesia. In addition, the Center’s members and staff have visited and enjoyed
`
`Micronesia where these 23 species of plants and animals occur, and they have
`
`sought out and observed these species in the Mariana Islands and greater
`
`Micronesia in the U.S. Territory of Guam, and CNMI. The Center’s members and
`
`staff have plans to continue to visit and observe, or attempt to observe, these 23
`
`species of plants and animals in the future. The Center’s members and staff derive
`
`scientific, recreational, cultural, conservation, spiritual, educational, medicinal, and
`
`
`
`7
`
`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 7 of 22
`
`

`

`aesthetic benefits from these 23 species of plants and animals’ existence in the
`
`wild.
`
`16. For example, one member of the Center, is an indigenous CHamoru
`
`woman who serves as a yo'åmte, or traditional healer, in the local community of
`
`Guam. She regularly harvests a variety of plants in order to make åmot, or
`
`traditional medicine, from throughout the island, including the Ritidian area. She
`
`visits the areas where these plants are found both alone and with other people,
`
`including young cultural apprentices to whom she is passing on her traditional
`
`knowledge. She visits these areas to practice her culture, commune with her
`
`ancestors, and enjoy the area’s biological and cultural resources. Being of
`
`CHamoru ancestry, this member has a deep spiritual connection to these species
`
`and the habitats they depend on to survive. She plans to continue visiting these
`
`species and their habitats on a regular basis for these purposes. Another member
`
`of the Center, is a scientist who has sought out, observed, and researched these
`
`plant and animal species. She is concerned about the pressing need to conserve
`
`these species’ critical habitat.
`
`17. The Center’s members’ and staff’s enjoyment of these 23 species of
`
`plants and animals is dependent on the continued existence of healthy, sustainable
`
`populations in the wild. The Service’s failure to designate critical habitat for these
`
`
`
`8
`
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`
`

`

`23 species of plants and animals directly harms these interests. The Center brings
`
`this action on behalf of itself and its adversely affected members.
`
`18. The Center has worked to protect the wildlife of Mariana Islands and
`
`greater Micronesia in the U.S. Territory of Guam, and CNMI for more than 20
`
`years, including the filing of petitions to the Service to designate species as
`
`threatened and endangered, and to designate critical habitat for listed species,
`
`pursuant to the ESA. These petitions include the Center’s May 2004 petition to list
`
`these 23 species of plants and animals.
`
`19. The Center and its members are adversely affected or aggrieved by
`
`the Service’s inaction and are entitled to judicial review of such inaction under the
`
`ESA and the APA. The Service’s failure to comply with the ESA’s
`
`nondiscretionary deadlines to designate critical habitat for these 23 ESA-listed
`
`species denies these threatened and endangered plants and animals vital protections
`
`that are necessary for their survival and recovery. Without the additional
`
`protections that would be available subsequent to the designation of critical habitat,
`
`these 23 ESA-listed species of plants and animals are more likely to continue to
`
`decline and become extinct. The Center’s members and staff are therefore injured
`
`because their use and enjoyment of these 23 ESA-listed species of plants and
`
`animals are threatened by the Service’s violations of the ESA. The above-
`
`described cultural, aesthetic, recreational, spiritual, scientific, educational,
`
`
`
`9
`
`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 9 of 22
`
`

`

`conservational, medicinal, and other interests of the Center and its members have
`
`been, are being, and unless the Court grants the requested relief, will continue to be
`
`adversely affected and irreparably injured by Defendants’ continued failure to
`
`comply with their obligations under the ESA. The relief sought in this case will
`
`redress these injuries.
`
`20. The Service’s failure to comply with the ESA’s deadlines has also
`
`resulted in informational and procedural injury to the Center, because the ESA
`
`affords the Center procedural and informational rights, including the right to
`
`comment on and otherwise participate in the statutorily mandated critical habitat
`
`processes triggered by an ESA listing. The Service’s failure to timely designate
`
`critical habitat frustrates these rights. These are actual, concrete injuries to the
`
`Center, caused by the Service’s failure to comply with the ESA, its implementing
`
`regulations (50 C.F.R. pt. 424), and the APA. The relief requested will fully
`
`redress those injuries.
`
`21. Defendant DEBRA HAALAND is the Acting Secretary of the United
`
`States Department of the Interior and is the federal official with final responsibility
`
`for making decisions and promulgating regulations required by and in accordance
`
`with the ESA, including the timely designation of critical habitat, and for
`
`complying with all other federal laws applicable to the Department of the Interior.
`
`Acting Secretary Debra Haaland is sued in her official capacity.
`
`
`
`10
`
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`
`

`

`22. Defendant U.S. FISH AND WILDLIFE SERVICE is an agency of the
`
`United States Government, within and under the jurisdiction of the Department of
`
`the Interior. Through delegation of authority from the Secretary of the Interior, the
`
`Service administers and implements the ESA for non-marine wildlife. 50 C.F.R. §
`
`402.01(b). This authority encompasses timely compliance with the ESA’s
`
`mandatory deadlines to designate critical habitat.
`
`23. Defendant MARTHA WILLIAMS is the Principal Deputy Director
`
`(“Director”) of the U.S. Fish and Wildlife Service and is being sued in her official
`
`capacity. The Director is responsible for the administration and the
`
`implementation of the ESA and APA in timely designating the critical habitat of an
`
`endangered or threatened species.
`
`LEGAL BACKGROUND
`
`24. The Supreme Court has declared that the Endangered Species Act
`
`“represent[s] the most comprehensive legislation for the preservation of
`
`endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437
`
`U.S. 153, 180 (1978). As the Court recognized, “Congress intended endangered
`
`species be afforded the highest of priorities.” Id. at 174. Accordingly, the purpose
`
`of the ESA is to “provide a means whereby the ecosystems upon which endangered
`
`species and threatened species depend may be conserved, [and] to provide a
`
`
`
`11
`
`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 11 of 22
`
`

`

`program for the conservation of such endangered species and threatened species[.]”
`
`16 U.S.C. § 1531(b).
`
`25. The ESA defines “conservation” to mean “the use of all methods and
`
`procedures which are necessary to bring any endangered species or threatened
`
`species to the point at which the measures provided pursuant to this Act are no
`
`longer necessary.” Id. § 1532(3). Thus, the ultimate goal of the ESA is not only to
`
`temporarily save endangered and threatened species from extinction but to recover
`
`these species to the point where they no longer need ESA protection.
`
`26. To that end, the ESA requires the Service to protect imperiled species
`
`by listing them as “endangered” or “threatened” when they meet the statutory
`
`listing criteria. Id. § 1533(a)(1). A species is endangered if it “is in danger of
`
`extinction throughout all or a significant portion of its range.” Id. § 1532(6). A
`
`species is threatened if it is “is likely to become an endangered species within the
`
`foreseeable future throughout all or a significant portion of its range.” Id. §
`
`1532(20).
`
`27. Once a species is listed, it receives a host of important protections
`
`designed to prevent its extinction and aid its recovery, including one of the most
`
`crucial protections — safeguards for its “critical habitat.” Id. § 1533(a)(3)(A).
`
`28. Concurrent with listing a species, the ESA requires the designation of
`
`critical habitat. 16 U.S.C. § 1533(a)(3)(A)(i) (“The Secretary . . . shall,
`
`
`
`12
`
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`
`

`

`concurrently with making a determination . . . that a species is an endangered
`
`species or a threatened species, designate any habitat of such species which is then
`
`considered to be critical habitat.”); see also id. § 1533(b)(6)(C).
`
`29.
`
`In limited circumstances, the Service may extend the designation of
`
`critical habitat for no more than one year. If the Secretary finds that critical habitat
`
`is “not determinable” at the time of listing, it “may extend the one-year period . . .
`
`by not more than one additional year, but not later than the close of such additional
`
`year the Secretary must publish a final regulation, based on such data as may be
`
`available at that time, designating, to the maximum extent prudent, such habitat.”
`
`16 U.S.C. § 1533(b)(6)(C)(ii).
`
`30. Critical habitat means “the specific areas within the geographical area
`
`occupied by the species, at the time it is listed in accordance with the provisions of
`
`section [4 of the ESA], on which are found those physical or biological features (I)
`
`essential to the conservation of the species and (II) which may require special
`
`management considerations or protection;” and unoccupied areas “essential for the
`
`conservation of the species.” 16 U.S.C. § 1532(5); see also 50 C.F.R. § 424.12(b).
`
`31. Congress recognized the importance of habitat protections to the
`
`conservation and recovery of endangered species. The legislative history of the
`
`ESA clearly demonstrates Congress understood the importance of timely critical
`
`habitat designation in conserving listed species:
`
`
`
`13
`
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`
`

`

`[C]lassifying a species as endangered or threatened is only the first step
`in insuring its survival. Of equal or more importance is the
`determination of the habitat necessary for that species’ continued
`existence . . . . If the protection of endangered and threatened species
`depends in large measure on the preservation of the species’ habitat,
`then the ultimate effectiveness of the Endangered Species Act will
`depend on the designation of critical habitat.
`
`
`H.R. Rep. No. 94-887 at 3 (1976) (emphasis added).
`
`32. Time has proven the wisdom of Congress’ requirement that the
`
`Service designate critical habitat for listed species. Studies demonstrate that
`
`species with critical habitat are more than twice as likely to be in recovery than
`
`those without it.
`
`33. The ESA does not safeguard a species’ critical habitat until the
`
`Service designates it. Therefore, it is imperative that the Service meticulously
`
`follow the ESA’s procedures and deadlines to ensure it designates critical habitat
`
`in a timely manner.
`
`34. Section 7(a)(1) of the ESA imposes an “affirmative duty” on all
`
`federal agencies to conserve listed species. It provides that federal agencies shall
`
`“utilize their authorities in furtherance of the purposes of this chapter by carrying
`
`out programs for the conservation of endangered species and threatened species[.]”
`
`16 U.S.C. § 1536(a)(1).
`
`35. Pursuant to section 7(a)(2) of the ESA, federal agencies must ensure
`
`through consultation with the Service that any action federal agencies authorize,
`
`
`
`14
`
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`
`

`

`fund, or carry out will not “jeopardize the continued existence of any [ESA-listed]
`
`species.” Id. at § 1536(a)(2). For species with critical habitat, each federal agency
`
`must additionally guarantee that its actions will not “result in the destruction or
`
`adverse modification” of that habitat. Id.
`
`36. The ESA’s citizen suit provision provides for judicial review where
`
`the Service has failed to perform a mandatory duty under ESA section 4. 16
`
`U.S.C. § 1540(g)(1)(C). The APA provides the scope of review for an agency
`
`action. 5 U.S.C. § 706(2)(A). Furthermore, under the APA, a reviewing court must
`
`“compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §
`
`706(1).
`
`FACTUAL BACKGROUND
`
`37. On October 1, 2015, the Service determined endangered status for 16
`
`plant and animal species from the Mariana Islands: Eugenia bryanii; Hedyotis
`
`megalantha (pao dedu Ch, pao doodu CI); Heritiera longipetiolata (ufa halumtanu
`
`Ch, ufa halom tano CI); Phyllanthus saffordii; Psychotria malaspinae (aplokating
`
`palaoan Ch / CI); Solanum guamense (Biringenas halumtanu Ch, birengenas halom
`
`tano CI); Tinospora homosepala; Emballonura semicaudata rotensis (Pacific
`
`sheath-tailed bat (Mariana subspecies), payeyi Ch, paischeey CI); Emoia slevini
`
`(Slevin’s skink, Marianas Emoia, Marianas skink, gualiik halumtanu Ch, gholuuf
`
`CI); Hypolimnas octocula marianensis (Mariana eight-spot butterfly, ababbang Ch,
`
`
`
`15
`
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`
`

`

`Libweibwogh CI); Vagrans egistina (Mariana wandering butterfly, ababbang Ch,
`
`Libweibwogh CI); Ischnura luta (Rota blue damselfly, dulalas Luta Ch, dulalas
`
`Luuta CI); Partula gibba (humped tree snail, akaleha Ch, denden CI); Partula
`
`langfordi (Langford’s tree snail, akaleha Ch, denden CI); Partula radiolata (Guam
`
`tree snail, akaleha Ch, denden CI); and Samoana fragilis (fragile tree snail, akaleha
`
`dogas Ch, denden CI). 80 Fed. Reg. 59,424, 59,427 (Oct. 1, 2015). The Service
`
`also determined threatened status for seven plant species from the Mariana Islands
`
`and greater Micronesia in the U.S. Territory of Guam, and CNMI: Bulbophyllum
`
`guamense (wild onion siboyas halumtanu Ch, siboyan halom tano CI); Cycas
`
`micronesica (fadang Ch, faadang CI); Dendrobium guamense; Maesa walkeri;
`
`Nervilia jacksoniae; Tabernaemontana rotensis; and Tuberolabium guamense. Id.
`
`at 59,424. The ESA requires critical habitat designation concurrently with this
`
`listing determination, except under limited circumstances. 16 U.S.C. §
`
`1533(a)(3)(A)(i), (b)(6)(A); see also id. § 1533(b)(6)(C)(i)-(ii).
`
`38. The Service failed to designate critical habitat concurrently with its
`
`October 1, 2015, rule listing these 23 species as endangered and threatened. 80
`
`Fed. Reg. 59,424. Since the Service found critical habitat was not determinable at
`
`that time, the Service had until October 1, 2016, to publish final critical habitat
`
`designations. See 16 U.S.C. § 1533(b)(6)(C)(i-ii). However, the Service has yet to
`
`designate critical habitat for any of these 23 Micronesian species.
`
`
`
`16
`
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`
`

`

`39. The Service’s failure is inexcusable as it has recognized that these “23
`
`Mariana Island species are experiencing population-level impacts” as the result of
`
`serious and ongoing threats from habitat loss and degradation due to federal
`
`activities, including military activities to test weapons. 80 Fed. Reg. 59,424.
`
`These species’ habitat is being devasted by development, activities associated with
`
`military weapons testing, training and urbanization, nonnative ungulates and
`
`plants, brown treesnakes, fire, and climate change. Id. at 59,471.
`
`40. The threat of habitat destruction is further increased by “[d]irect
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`impacts from ordnance and live-fire from military training, recreational vehicles,
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`and exacerbated vulnerability to threats and, consequently, extinction, due to small
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`numbers of individuals and populations.” Id. at 59,424.
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`41. This ongoing habitat destruction, in addition to other serious threats,
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`leaves these highly endemic species in danger of extinction throughout all or a
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`significant portion of their range. Id. at 59,471.
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`42. The Service’s delay in designating critical habitat for these 23
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`Micronesian species violates its non-discretionary duties under the ESA, deprives
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`these imperiled species of protections to which they are legally entitled, and
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`inexcusably leaves them at increased risk of extinction.
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`17
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`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 17 of 22
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`FIRST CLAIM FOR RELIEF
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`Violation of the Service’s Nondiscretionary Duties under Section 4 of the
`Endangered Species Act (ESA Citizen Suit Claim)
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`Failure to timely designate critical habitat for 23 Micronesian species
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`43. The Center re-alleges and incorporates by reference all allegations set
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`forth in this Complaint, as though fully set forth below.
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`44. Under section 4 of the ESA, the Service has a mandatory, non-
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`discretionary duty to designate critical habitat for 23 Micronesian species
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`concurrently with its listing decision. 16 U.S.C. § 1533(a)(3)(A)(i), (b)(6)(C).
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`Under limited circumstances, the Service may extend that deadline to no more than
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`one additional year. Id. § 1533 § (b)(6)(A)(ii), (C)(ii).
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`45. To date, the Service has failed to designate critical habitat for these 23
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`Micronesian species. The Service has not proposed or finalized the designation of
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`critical habitat for these 23 Micronesian species.
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`46. The Service’s failure to timely designate critical habitat for these 23
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`Micronesian species violates section 4 of the ESA. 16 U.S.C. § 1533.
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`18
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`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 18 of 22
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`SECOND CLAIM FOR RELIEF
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`Violation of the Administrative Procedure Act
`(In the Alternative to Plaintiffs’ First Claim for Relief)
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`Agency Action Unlawfully Delayed or Unreasonably Withheld Under APA, 5
`U.S.C. § 706(1)
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`47. The Center re-alleges and incorporates by reference all allegations set
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`forth in this Complaint, as though fully set forth below.
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`48. Under the APA, a reviewing court shall “compel agency action
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`unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
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`49. Timely designation of critical habitat for these 23 Micronesian species
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`constitutes a mandatory, non-discretionary action the Service was required to
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`perform pursuant to 16 U.S.C. § 1533(a).
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`50. The Service’s continued failure to timely designate critical habitat for
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`these 23 Micronesian species violates the ESA, 16 U.S.C. § 1533, and constitutes
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`an agency action that has been “unlawfully withheld or unreasonably delayed”
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`within the meaning of the APA, 5 U.S.C. § 706(1).
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`19
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`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 19 of 22
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`REQUEST FOR RELIEF
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`The Center respectfully requests that the Court grant the following relief:
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`1.
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`Declare that the Service is in violation of section 4(a) of the ESA by
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`failing to timely designate critical habitat for each of the 23
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`Micronesian species, 16 U.S.C. § 1533(a). In the alternative, declare
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`that the Service unlawfully withheld or unreasonably delayed within
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`the meaning of the APA, 5 U.S.C. § 706(1), the timely designation of
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`critical habitat;
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`2.
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`Order the Service to propose and finalize critical habitat rules for
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`these 23 Micronesian species by dates certain;
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`4.
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`Award the Center its reasonable fees, costs, and expenses associated
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`with this litigation pursuant to 16 U.S.C. § 1540(g)(4), or the Equal
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`Access to Justice Act, 28 U.S.C. § 2412(d); and
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`4.
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`Grant such other and further relief as the Court deems just and proper
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`to remedy the Service’s violations of law.
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`DATE: July 20, 2021
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`Respectfully Submitted,
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`/s/ Julian Aguon
`Julian Aguon (GU Bar No. 09081)
`BLUE OCEAN LAW, P.C.
`134 W Soledad Ave., Ste. 400
`Hagåtña, GU 96910
`Phone: (671) 472-2583
`20
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`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 20 of 22
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`Email: julian@blueoceanlaw.com
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`Maxx Phillips (HI Bar No. 10032)
`pro hac vice application forthcoming
`CENTER FOR BIOLOGICAL DIVERSITY
`1188 Bishop Street, Suite 2412
`Honolulu, HI 96813
`Phone: (808) 284-0007
`Email: mphillips@biologicaldiversity.org
`
`
`Amy R. Atwood (OR Bar No. 060407)
`pro hac vice application forthcoming
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 11374
`Portland, OR 97211
`Phone: (917) 717-6401
`Email: atwood@biologicaldiversity.org
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`Attorneys for Plaintiff
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`21
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`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 21 of 22
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`

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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 20, 2021, I filed the foregoing Complaint using
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`the Court’s ECF system, which will cause this filing to be served on counsel of
`record for Defendants.
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`DATE: July 20, 2021
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`/s/ Julian Aguon
`Julian Aguon
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`22
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`Case 1:21-cv-00017 Document 1 Filed 07/20/21 Page 22 of 22
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`

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