`
`Maxx Phillips (HI Bar No. 10032)
`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
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF HAWAII
`
`
`
`
`
`Case No.:
`
`COMPLAINT FOR INJUNCTIVE
`AND DECLARATORY RELIEF
`
`
`
`
`CENTER FOR BIOLOGICAL
`DIVERSITY, a non-profit corporation,
`
`
`Plaintiff,
`
`
`
`v.
`
`SCOTT DE LA VEGA, in his official
`capacity as Acting Secretary of the
`Interior; U.S. FISH AND WILDLIFE
`SERVICE, an agency of the U.S.
`Department of Commerce,
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
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`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 and develop a valid recovery plan for the
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`‘i‘iwi (Drepanis coccinea), a threatened native Hawai’ian bird species, as required
`
`under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544. The
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`Service’s failure to timely designate critical habitat for ‘i‘iwi violates its mandatory
`
`duties under section 4 of the ESA, 16 U.S.C. § 1533. Likewise, the Service’s
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`failure to timely develop and implement a recovery plan for ‘i‘iwi violates its
`
`mandatory duties under section 4 of the ESA, 16 U.S.C. § 1533. Compliance with
`
`these mandatory, nondiscretionary duties are necessary to ensure the continued
`
`survival and eventual recovery of this imperiled species. These inexcusable delays
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`deprive the threatened ‘i‘iwi of vitally important protections in its most essential
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`habitat areas and at its greatest time of need.
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`
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`2
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`
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`An ‘i‘iwi (Drepanis coccinea) in an ‘ōhi‘a tree. Credit: Keith Burnett
`
`2.
`
`Hawaiian forest birds, one of the most imperiled groups of birds in the
`
`world, are in crisis. Sadly, 68 percent of Hawai‘i’s known endemic bird species
`
`have gone extinct since the arrival of humans due to habitat loss, disease, and the
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`introduction of invasive predators. Of the 37 endemic species that remain, 33 are
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`currently listed under the ESA, although nine have not been observed recently and
`
`are believed to be extinct.
`
`3.
`
`The vulnerable i’iwi has declined significantly in recent decades due
`
`to threats including climate change, habitat destruction, and diseases.
`
`4.
`
`Once one of the most abundant native forest birds in Hawai‘i, the
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`‘i‘iwi now persists on only three islands, with the population on one of these
`
`
`
`3
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`
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`islands likely to go extinct by 2050. 82 Fed. Reg. at 43,875, 43,880 (Sept. 20,
`
`2017).
`
`5.
`
`In light of the significant threats facing ‘i‘iwi, on September 20, 2017,
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`the Service listed ‘i‘iwi as a “threatened” species under the ESA. Id. at 43,873.
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`6. When the Service lists a species as endangered or threatened, it must
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`designate critical habitat for that species, to the greatest extent prudent and
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`determinable. 16 U.S.C. § 1533(a)(3)(A)(i). Under limited circumstances, the
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`Service may extend that deadline to no more than one additional year. Id. §
`
`1533(b)(6)(C)(ii).
`
`7.
`
`Additionally, subsection 4(f) of the ESA imposes a mandatory,
`
`nondiscretionary duty on the Service to develop and implement recovery plans for
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`the conservation of each species listed as endangered or threatened. 16 U.S.C. §
`
`1533(f)(1).
`
`8.
`
`Regardless of these non-discretionary statutory requirements, to date,
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`the Service has not designated critical habitat for the ‘i‘iwi nor developed a final
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`recovery plan for this species, as required by section 4 of the ESA.
`
`9.
`
`Time is of the essence in protecting this iconic forest bird. The
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`‘i‘iwi’s very existence remains at risk until the Service fulfills its mandatory
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`statutory duties.
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`
`
`4
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`10. The Service’s failure to timely designate critical habitat and prepare a
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`legally required recovery plan for ‘i‘iwi violates section 4(f) of the ESA, 16 U.S.C.
`
`§ 1533, 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
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`timely designate critical habitat for ‘i‘iwi, (2) secure declaratory relief that the
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`Service is in violation of the ESA for failing to create a legally valid recovery plan
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`for the ‘i‘iwi, (3) enjoin the agency to designate critical habitat according to a
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`timeline established by the Court and (4) enjoin the agency to issue a recovery plan
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`according to a timeline established by the Court.
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`JURISDICTION AND VENUE
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`11. 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 (Administrative Procedure Act or
`
`“APA”), and 28 U.S.C. § 1361 (mandamus).
`
`12. 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).
`
`
`
`5
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`13. By written notice sent on October 13, 2020, the Center informed
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`Defendants of their violation more than sixty days prior to the filing of this
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`Complaint, as required by the ESA. 16 U.S.C. § 1540(g)(2)(C). Despite receipt of
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`the Center’s notice letter, the Service has failed to remedy its violation of the ESA.
`
`14. Venue is proper in the U.S. District Court for the District of Hawai‘i
`
`pursuant to 28 U.S.C. § 1391(e)(1)(B) because a substantial part of the events or
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`omissions giving rise to the claim occurred in this judicial district and the
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`threatened ‘i‘iwi occurs in this judicial district.
`
`15. An actual, justiciable controversy exists between the parties within the
`
`meaning of 28 U.S.C. § 2201.
`
`16. The Center has no adequate remedy at law. The Service’s continuing
`
`failure to comply with the ESA will result in irreparable harm to the ‘i‘iwi, 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.
`
`17. The federal government has waived sovereign immunity in this action
`
`pursuant to 16 U.S.C. § 1540(g) and 5 U.S.C. § 702.
`
`PARTIES
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`18. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (the “Center”)
`
`is a non-profit 501(c)(3) membership corporation with offices throughout the
`
`
`
`6
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`United States, including Hawai‘i. Through science, policy, and environmental law,
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`the Center is actively involved in species and habitat protection issues throughout
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`the United States and abroad, including efforts related to Hawai‘i’s imperiled
`
`forest birds, and the effective implementation of the ESA. The Center has more
`
`than 84,000 members throughout the United States, including Hawai‘i, with a
`
`direct interest in the survival and recovery of threatened and endangered species.
`
`The Center is highly dedicated in conserving fragile and impacted ecosystems and
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`the species that depend on them. The Center’s members and staff have researched,
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`studied, observed, and sought protection for the ‘i‘iwi. In addition, the Center’s
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`members and staff have visited and enjoyed the forests of Hawai‘i where the ‘i‘iwi
`
`occur, and they have sought out and observed these species in Hawai‘i. The
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`Center’s members and staff have plans to continue to visit and observe, or attempt
`
`to observe, ‘i‘iwi in the future. The Center’s members and staff derive scientific,
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`recreational, cultural, conservation, and aesthetic benefits from ‘i‘iwi’s existence in
`
`the wild. The Center’s members’ and staff’s enjoyment of ‘i‘iwi is dependent on
`
`the continued existence of healthy, sustainable populations in the wild. The
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`Service’s failure to designate critical habitat for the ‘i‘iwi and to develop a valid
`
`recovery plan directly harms these interests. The Center brings this action on
`
`behalf of itself and its adversely affected members.
`
`
`
`7
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`19. The Center and its members are adversely affected or aggrieved by
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`the Service’s inaction and are entitled to judicial review of such inaction under the
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`ESA and the APA. The Service’s failure to comply with the ESA’s
`
`nondiscretionary deadlines to designate critical habitat and develop a recovery plan
`
`for the ‘i‘iwi denies these threatened birds 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, ‘i‘iwi are more likely to
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`continue to decline and become extinct. Without a legally valid recovery plan, the
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`myriad of threats facing the ‘i‘iwi will continue to compound. The Center’s
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`members and staff are therefore injured because their use and enjoyment of ‘i‘iwi
`
`are threatened by the Service’s violations of the ESA. The above-described
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`cultural, aesthetic, recreational, scientific, educational and other interests of the
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`Center and its members have been, are being and, unless the relief prayed herein is
`
`granted, will continue to be adversely affected and irreparably injured by
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`Defendants’ continued refusal to comply with their obligations under the ESA.
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`The relief sought in this case will redress these injuries.
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`20. The Service’s failure to comply with the ESA’s deadlines has also
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`resulted in informational and procedural injury to the Center, because the ESA
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`affords the Center procedural and informational rights, including the right to
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`comment on and otherwise participate in the statutorily-mandated critical habitat
`
`
`
`8
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`and recovery plan processes triggered by an ESA listing. The Service’s failure to
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`timely designate critical habitat and development of a recovery plan frustrates
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`these rights. These are actual, concrete injuries to the Center, caused by the
`
`Service’s failure to comply with the ESA, its implementing regulations, and the
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`Administrative Procedure Act. The relief requested will fully redress those
`
`injuries.
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`21. Defendant SCOTT DE LA VEGA 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
`
`development of a valid recovery plan, and to comply with all other federal laws
`
`applicable to the Department of the Interior. Acting Secretary de la Vega is sued
`
`in his official capacity.
`
`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
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`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 and develop and implement a
`
`recovery plan.
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`
`
`9
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`LEGAL BACKGROUND
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`23. The Supreme Court has declared the Endangered Species Act
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`“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
`
`program for the conservation of such endangered species and threatened species . .
`
`. .” 16 U.S.C. § 1531 (b).
`
`24. 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.
`
`25. To that end, the Endangered Species Act requires the Service to
`
`protect imperiled species by listing them as “endangered” or “threatened” when
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`they meet the statutory listing criteria. Id. § 1533(a)(1). A species is endangered if
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`it “is in danger of extinction throughout all or a significant portion of its range.”
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`
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`10
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`Id. § 1532(6). A species is threatened if it is “is likely to become an endangered
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`species within the foreseeable future throughout all or a significant portion of its
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`range.” Id. § 1532(20).
`
`26. Once a species is listed, it receives a host of important protections
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`designed to prevent its extinction and aid its recovery, including one of the most
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`crucial protections — safeguards for its “critical habitat.” Id. § 1533(a)(3)(A).
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`27. Concurrent with listing a species, the ESA requires the designation of
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`critical habitat. 16 U.S.C. § 1533(a)(3)(A)(i) (“The Secretary . . . shall,
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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
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`considered to be critical habitat.”); see also id. § 1533(b)(6)(C).
`
`28.
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`In limited circumstances, the Service may extend the designation of
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`critical habitat for no more than one year. If the Secretary finds that critical habitat
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`is “not determinable” at the time of listing, it “may extend the one-year period . . .
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`by not more than one additional year, but not later than the close of such additional
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`year the Secretary must publish a final regulation, based on such data as may be
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`available at that time, designating, to the maximum extent prudent, such habitat.”
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`16 U.S.C. § 1533(b)(6)(C)(ii).
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`29. Critical habitat means “the specific areas within the geographical area
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`occupied by the species . . . on which are found those physical or biological
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`11
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`features (I) essential to the conservation of the species and (II) which may require
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`special management considerations or protection;” and unoccupied areas “essential
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`for the conservation of the species.” 16 U.S.C. § 1532(5).
`
`30. Congress recognized the importance of habitat protections to the
`
`conservation and recovery of endangered species. The legislative history of the
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`ESA clearly demonstrates Congress understood the importance of timely critical
`
`habitat designation in conserving listed species:
`
`[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).
`
`31. Time has proven the wisdom of Congress’ requirement that the
`
`Service designate critical habitat for listed species. Studies demonstrate that
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`species with critical habitat are more than twice as likely to be in recovery than
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`those without it.
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`32. The ESA does not safeguard a species’ critical habitat until the
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`Service designates it. Therefore, it is imperative that the Service meticulously
`
`follow the Act’s procedures and deadlines to ensure it designates critical habitat in
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`a timely manner.
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`12
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`33. Additionally, as part of the statutory scheme to conserve endangered
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`and threatened species, Section 4(f) the ESA provides that the Service “shall
`
`develop and implement . . . recovery plans . . . for the conservation and survival of
`
`endangered species and threatened species listed pursuant to [the ESA], unless [the
`
`Service] finds that such a plan will not promote the conservation of the species.”
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`16 U.S.C. § 1533(f)(1).
`
`34.
`
`In developing a recovery plan, the Service “shall, to the maximum
`
`extent practicable . . . incorporate in each plan—
`
`a description of such site-specific management actions as may be
`(i)
`necessary to achieve the plan’s goal for the conservation and survival
`of the species;
`
`(ii) objective, measurable criteria which, when met, would result in
`a determination, in accordance with the provisions of this section, that
`the species be removed from the list; and
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`(iii) estimates of the time required and the cost to carry out those
`measures needed to achieve the plan’s goal and to achieve intermediate
`steps toward that goal.” 16 U.S.C. § 1533(f)(1)(B).
`
`35. The ESA further provides that in developing and implementing
`
`recovery plans, the Service may obtain the services of appropriate public and
`
`private agencies and institutions, and other qualified persons. 16 U.S.C. §
`
`1533(f)(2). The Service shall report to Congress every two years on the status of
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`efforts to develop and implement recovery plans for all listed species and on the
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`status of all species for which plans have been developed. 16 U.S.C. § 1533(f)(3).
`
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`13
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`The Service shall provide for public notice of, and comment on, any new or
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`revised recovery plan prior to its final approval and shall consider all information
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`presented during the public comment period prior to final approval of the new or
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`revised recovery plan. 16 U.S.C. § 1533(f)(4). The Service, prior to
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`implementation of a new or revised recovery plan, shall consider all information
`
`presented during the public comment period. 16 U.S.C. § 1533(f)(5).
`
`36.
`
`In the absence of a statutory timeline for developing recovery plans,
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`the Service has adopted a policy that it will develop a recovery plan in compliance
`
`with 16 U.S.C. § 1533(f) within two and a half years of promulgation of the final
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`regulation listing an endangered or threatened species. See 59 Fed. Reg. 34272
`
`(Endangered and Threatened Wildlife and Plants: Notice of Interagency
`
`Cooperative Policy on Recovery Plan Participation and Implementation under the
`
`Endangered Species Act).
`
`37. Section 7(a)(1) of the ESA imposes an “affirmative duty” on all
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`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
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`out programs for the conservation of endangered species and threatened species . . .
`
`.” 16 U.S.C. § 1536(a)(1).
`
`38. The ESA’s citizen-suit provision provides for judicial review where
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`the Service has failed to perform a mandatory duty under ESA section 4. 16
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`14
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`U.S.C. § 1540(g)(1)(C). The APA provides the standard of review, 5 U.S.C. §
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`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
`
`39.
`
`‘I‘iwi (Drepanis coccinea) are a medium-sized Hawaiian forest bird
`
`known for their iconic bright red plumage, black wings, and distinctive long,
`
`curved bill.
`
`40. The ‘i‘iwi’s diet consists primarily of nectar from the blossoms of the
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`‘ōhi‘a (Metrosideros polymorpha) and mamane tree (Sophora chrysophylla).
`
`‘I‘iwi migrate seasonally to follow ‘ōhi‘a and mamane blooms, leaving its high
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`elevation forest habitat and descending to lower elevations in search of nectar.
`
`41. The ‘i‘iwi’s seasonal movements to lower elevations expose this
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`threatened endemic bird to fatal avian diseases.
`
`42. The ‘i‘iwi was once one of the most abundant native forest birds in
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`Hawai‘i, “found from sea level to the tree line across all major islands.” 82 Fed.
`
`Reg. at 43,875. Unfortunately, ‘i‘iwi can no longer be found across much of its
`
`historical range today. With the introduction of mosquitoes and mosquito-borne
`
`diseases such as avian malaria and avian pox, ‘i‘iwi have been forced out of lower
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`elevations, where mosquito prevalence and disease proliferation are higher, into
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`high elevation disease-free areas. Id.
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`15
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`43. Like many native Hawaiian forest birds, ‘i‘iwi are highly susceptible
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`to avian malaria. In fact, the ‘i‘iwi is “one of the most vulnerable species,” with an
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`extremely low resistance to avian malaria and an average 95 percent mortality rate.
`
`Id. at 43876. The combination of low resistance and high mortality means that
`
`nearly every ‘i‘iwi that comes into contact with avian malaria dies from the
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`disease. Therefore, conservation of remaining high-elevation, disease-free habitat
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`is of utmost importance for the continued survival of ‘i‘iwi.
`
`44. Warmer temperatures associated with climate change further
`
`exacerbate the eminent danger of avian malaria facing ‘i‘iwi. Mosquitoes are
`
`temperature-limited species that cannot currently survive at higher elevations in
`
`Hawai‘i due to cooler temperatures. Unfortunately, due to climate change,
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`temperatures at high elevations in Hawai‘i are increasing at a “disproportionately
`
`greater” rate than at mid and low elevations. 82 Fed. Reg. at 43,879. This
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`warming allows mosquitoes to expand their range into higher elevations, bringing
`
`with them avian malaria and avian pox. Furthermore, the virus that causes avian
`
`malaria survives better in warmer temperatures, meaning warmer high elevation
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`habitats will no longer be safe refugia from the disease. Id.
`
`45. As warmer temperatures facilitate the spread of mosquitoes and avian
`
`malaria, ‘i‘iwi’s disease-free habitat contracts. This is having a devastating impact
`
`on the threatened ‘i‘iwi. For example, on Kaua‘i, warmer temperatures now allow
`
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`16
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`mosquitoes and the avian malaria virus to survive at all elevations, exposing ‘i‘iwi
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`to the disease throughout its range. Id. at 43880. In response, the Kaua‘i ‘i‘iwi
`
`population has decreased drastically since 2000 and is expected to go extinct on the
`
`island by 2050. Id.
`
`46.
`
`In addition to disease limits on the ‘i‘iwi’s range, massive die-offs of
`
`‘ōhi‘a tree, which ‘i‘iwi depend on for nesting and food, further limit the ‘i‘iwi’s
`
`available habitat. Ceratocystsis spp., an introduced fungal disease that emerged on
`
`the island of Hawai‘i, causes a disease known as rapid ‘ōhi‘a death (“ROD”). Id.
`
`ROD can infect entire stands of ‘ōhi‘a trees, killing upwards of 50 percent of an
`
`infected stand. Id. Though originally limited to the island of Hawai‘i, as of June
`
`2020, ROD has spread to Kaua‘i, Maui, and O‘ahu. Mapping by the State of
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`Hawai‘i showed more than 60,000 ha of ROD-symptomatic ‘ōhi‘a forests. With
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`no effective means of containing ROD, ‘ōhi‘a forest death poses a significant risk
`
`to the continued survival of ‘i‘iwi.
`
`47. Due to the extensive threats of mosquito-borne diseases, such as avian
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`malaria and avian pox, rapid ‘ōhi‘a death, and climate change, the Service listed
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`the ‘i‘iwi as a “threatened” species under the ESA on September 20, 2017. 82 Fed.
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`Reg. 43,873. The ESA requires critical habitat designation, “to the maximum
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`extent prudent and determinable,” at the time of this listing determination, except
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`under specific circumstances. 16 U.S.C. § 1533(a)(3)(A)(i), (b)(6)(A); see also id.
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`§ 1533(b)(6)(C)(i-ii).
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`48. The Service failed, however, to designate critical habitat concurrently
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`with its September 20, 2017 rule listing ‘i‘iwi as threatened. 82 Fed. Reg. 43,873.
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`Since the Service found critical habitat was not determinable at that time, the
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`Service had until September 20, 2018, to designate critical habitat for ‘i‘iwi. See
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`16 U.S.C. § 1533(b)(6)(C)(i-ii).
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`49. To date, the Service has failed to propose critical habitat for ‘i‘iwi.
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`Without protections for its critical habitat, ‘i‘iwi will continue to lose what little
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`disease-free habitat remains throughout its range.
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`50. The Service has also failed to develop and implement a recovery plan
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`for ‘i‘iwi as required by the ESA. 16 U.S.C. § 1533(f).
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`51. Despite the Service’s own policy requiring it to develop a final
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`recovery plan within years of listing a species, ‘i‘iwi has now gone over three years
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`without a recovery plan. See 59 Fed. Reg. 34272.
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`52. The Service’s failure is inexcusable as it has recognized that ‘i‘iwi
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`face population declines of 70 to 90 percent over the next 80 years if actions are
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`not taken to minimize the threats of disease and habitat loss. See 82 Fed. Reg. at
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`43,883.
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`53. The Service’s delay in designating critical habitat and developing and
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`implementing a recovery plan for ‘i‘iwi violates its non-discretionary duties under
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`the ESA, deprives these special birds of protections to which they are legally
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`entitled, and inexcusably leaves them at increased risk of extinction.
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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 ‘i‘iwi
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`54. 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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`55. Under section 4 of the ESA, the Service has a mandatory, non-
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`discretionary duty to designate critical habitat for ‘i‘iwi concurrently with its
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`listing decision, 16 U.S.C. § 1533(a)(3)(A)(i), (b)(6)(C), or within one year of
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`proposing critical habitat, id. § (b)(6)(A)(ii).
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`56. To date, the Service has failed to designate critical habitat for ‘i‘iwi.
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`57. The Service’s failure to timely designate critical habitat for ‘i‘iwi
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`violates section 4 of the ESA, 16 U.S.C. § 1533.
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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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`Case 1:21-cv-00122-JMS-RT Document 1 Filed 03/03/21 Page 20 of 23 PageID #: 20
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`58. 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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`59. Under the APA, a reviewing court has the authority to “compel
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`agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
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`60. Timely designation of critical habitat for ‘i‘iwi constitutes a discrete
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`action the Service was required to take pursuant to 16 U.S.C. § 1533(f).
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`61. The Service’s continued failure to designate critical habitat for ‘i‘iwi
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`violates the ESA, 16 U.S.C. § 1533, and constitutes an agency action that has been
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`“unlawfully withheld or unreasonably delayed” within the meaning of the APA, 5
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`U.S.C. § 706(1).
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`THIRD 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 develop and implement a recovery plan for ‘i‘iwi
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`62. 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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`63. Under section 4(f) of the ESA, the Service has a non-discretionary
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`duty to “develop and implement” recovery plans for the “conservation and
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`survival” of listed species. 16 U.S.C. § 1533(f)(1).
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`20
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`64. Because the Service never developed a recovery plan for the ‘i‘iwi,
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`the Service has failed to “develop and implement” a plan for the “conservation and
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`survival” of the ‘i‘iwi, in violation of ESA section 4(f), 16 U.S.C. § 1533(f)(1).
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`FOURTH CLAIM FOR RELIEF
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`Violation of the Administrative Procedure Act
`(In the Alternative to Plaintiffs’ Third 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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`65. 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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`66. Under the APA, a reviewing court has the authority to “compel
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`agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).
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`67. Timely development and implementation of a recovery plan for ‘i‘iwi
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`constitute a discrete action the Service was required to take pursuant to 16 U.S.C. §
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`1533(f).
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`68. The Service’s continued failure to develop and implement a valid
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`recovery plan for ‘i‘iwi violates the ESA, 16 U.S.C. § 1533, and constitutes an
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`agency action that has been “unlawfully withheld or unreasonably delayed” within
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`the meaning of the APA, 5 U.S.C. § 706(1).
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`REQUEST FOR RELIEF
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`For the reasons stated above, the Center respectfully requests that the Court grant
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`the following relief:
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`1.
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`Declare that the Service is in violation of section 4(f) of the ESA, 16
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`U.S.C. § 1533(f), or the APA, 5 U.S.C. § 706(1);
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`2.
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`Order the Service to propose and finalize critical habitat rules for
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`‘i‘iwi by dates certain;
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`3.
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`Order the Service to prepare and implement a legally valid recovery
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`plan for ‘i‘iwi according to a timeline established by the Court;
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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) and/or 28
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`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: March 3, 2021
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`Respectfully Submitted,
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`/s/ Maxx Phillips
`Maxx Phillips (HI Bar No. 10032)
`CENTER FOR BIOLOGICAL DIVERSITY
`1188 Bishop Street, Suite 2412
`Honolulu, HI 96813
`Phone: (808) 284-0007
`Email: mphillips@biologicaldiversity.org
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`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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