Case 1:22-cv-00373-HG-WRP Document 1 Filed 08/11/22 Page 1 of 19 PageID #: 1
`
`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
`
`Brian Segee (CA Bar No. 200795), pro hac vice application forthcoming
`CENTER FOR BIOLOGICAL DIVERSITY
`660 S. Figueroa St., Suite 1000
`Los Angeles, CA 90017
`Phone: (805) 750-8852
`Email: bsegee@biologicaldiversity.org
`
`Attorneys for Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF HAWAII
`
`
`
`
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`a non-profit corporation,
`
`
`Case No.:
`
`
`
`COMPLAINT FOR
`DECLARATORY AND INJUNCTIVE
`RELIEF
`
`
`
`
`
`
`v.
`
`Plaintiff,
`
`
`
`
`
`
`DEB HAALAND, in her official
`capacity as Secretary of the Interior; U.S.
`FISH AND WILDLIFE SERVICE, an agency
`of the U.S. Department of the Interior;
`
`
`and
`
`
`MARTHA WILLIAMS, in her official
`capacity as the Director of the U.S. Fish and
`Wildlife Service;
`
`
`
`
`Defendants.
`
`1
`
`
`
`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
`
`Brian Segee (CA Bar No. 200795), pro hac vice application forthcoming
`CENTER FOR BIOLOGICAL DIVERSITY
`660 S. Figueroa St., Suite 1000
`Los Angeles, CA 90017
`Phone: (805) 750-8852
`Email: bsegee@biologicaldiversity.org
`
`Attorneys for Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF HAWAII
`
`
`
`
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`a non-profit corporation,
`
`
`Case No.:
`
`
`
`COMPLAINT FOR
`DECLARATORY AND INJUNCTIVE
`RELIEF
`
`
`
`
`
`
`v.
`
`Plaintiff,
`
`
`
`
`
`
`DEB HAALAND, in her official
`capacity as Secretary of the Interior; U.S.
`FISH AND WILDLIFE SERVICE, an agency
`of the U.S. Department of the Interior;
`
`
`and
`
`
`MARTHA WILLIAMS, in her official
`capacity as the Director of the U.S. Fish and
`Wildlife Service;
`
`
`
`
`Defendants.
`
`1
`
`
`
`Case 1:22-cv-00373-HG-WRP Document 1 Filed 08/11/22 Page 2 of 19 PageID #: 2
`
`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 forty-nine species of plants and animals
`
`in Hawaiʻi, as required under the Endangered Species Act (“ESA”), 16 U.S.C. §§
`
`1531-1544. The Service’s failure to timely designate critical habitat after listing
`
`these species as endangered violates its mandatory duty under the ESA. See 16
`
`U.S.C. § 1533(a)(3)(A)(i). This unlawful delay 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.
`
`On September 30, 2016, the Service listed forty-nine species from the
`
`Hawaiian Islands as endangered. 81 Fed. Reg. 67,786 (Sept. 30, 2016). The 2016
`
`listing included 39 species of plants: Asplenium diellaciniatum, Calamagrostis
`
`expansa (Maui reedgrass), Cyanea kauaulaensis, Cyclosorus boydiae (kupukupu
`
`makaliʻi), Cyperus neokunthianus, Cyrtandra hematos (haʻiwale), Deparia
`
`kaalaana, Dryopteris glabra var. pusilla (hohiu), Exocarpos menziesii (heau),
`
`Festuca hawaiiensis, Gardenia remyi (nānū), Huperzia stemmermanniae,
`
`2
`
`
`
`Case 1:22-cv-00373-HG-WRP Document 1 Filed 08/11/22 Page 3 of 19 PageID #: 3
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`Hypolepis hawaiiensis var. mauiensis (olua), Joinvillea ascendens ssp. ascendens
`
`(ʻohe), Kadua fluviatilis (kamapuaʻa), Kadua haupuensis, Labordia lorenciana,
`
`Lepidium orbiculare (ʻānaunau), Microlepia strigosa var. mauiensis, Myrsine
`
`fosbergii (kōlea), Nothocestrum latifolium (ʻaiea), Ochrosia haleakalae (hōlei),
`
`Phyllostegia brevidens, Phyllostegia helleri, Phyllostegia stachyoides, Portulaca
`
`villosa (ʻihi), Pritchardia bakeri (Baker’s loulu), Pseudognaphalium
`
`sandwicensium var. molokaiense (ʻenaʻena), Ranunculus hawaiensis (makou),
`
`Ranunculus mauiensis (makou), Sanicula sandwicensis, Santalum involutum
`
`(ʻiliahi), Schiedea diffusa ssp. diffusa, Schiedea pubescens (maʻoliʻoli), Sicyos
`
`lanceoloideus (ʻānunu), Sicyos macrophyllus (ʻānunu), Solanum nelsonii (pōpolo),
`
`Stenogyne kaalae ssp. sherffii, and Wikstroemia skottsbergiana (ʻākia). Id.
`
`Further, the 2016 listing included 10 animal species at risk for extinction:
`
`Oceanodroma castro, (Band-rumped storm-petrel), Hylaeus anthracinus (Yellow-
`
`faced bee), Hylaeus assimulans (Yellow-faced bee), Hylaeus facilis (Yellow-faced
`
`bee), Hylaeus hilaris (Yellow-faced bee), Hylaeus kuakea (Yellow-faced bee),
`
`Hylaeus longiceps (Yellow-faced bee), Hylaeus mana (Yellow-faced bee),
`
`Megalagrion xanthomelas (Orangeblack Hawaiian damselfly), and Procaris
`
`hawaiana (Anchialine pool shrimp). Id.
`
`3
`
`
`
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`3. When the Service lists a species as endangered or threatened, the ESA
`
`mandates that the Service shall concurrently “designate any habitat of such species
`
`which is then considered to be critical habitat.” 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 mandate, the Service has not,
`
`to date, designated critical habitat for any of the above listed species, as required
`
`by § 1533 of the ESA.
`
`5.
`
`These forty-nine plants and animals are only found in the Hawaiian
`
`Islands and each has a limited range within this already restricted geographic area.
`
`81 Fed. Reg. 67,826. The Service’s failure to designate critical habitat is all the
`
`more egregious due to the fact that it has recognized that these species’ already
`
`restricted habitats are being degraded or lost entirely due to “urbanization;
`
`nonnative feral ungulates (hoofed mammals, e.g., pigs, goats, axis deer, black-
`
`tailed deer, mouflon, and cattle); nonnative plants; wildfire; and water extraction.”
`
`Id. at 67,786.
`
`6.
`
`The continued survival and eventual recovery of these forty-nine
`
`endangered species remains at risk until the Service fulfills its mandatory statutory
`
`duty to designate critical habitat.
`
`4
`
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`7.
`
`The Service’s failure to timely designate critical habitat for these
`
`forty-nine species of plants and animals in Hawaiʻi violates section 4 of the ESA,
`
`16 U.S.C. §§ 1533(a)(3)(A)(i), (b)(6)(C). Accordingly, the Center brings this
`
`action against the Service to (1) secure declaratory relief that the Service’s failure
`
`to timely designate critical habitat is unlawful, 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 its citizen suit provision), 28
`
`U.S.C. § 1331 (federal question), and 28 U.S.C. § 1361 (mandamus).
`
`9.
`
`The declaratory judgment and injunctive relief sought is authorized by
`
`28 U.S.C. §§ 2201–2202 (Declaratory Judgment Act), and 16 U.S.C. § 1540(g)
`
`(citizen suit provision of the ESA).
`
`10. By written notice sent on May 25, 2022, the Center informed
`
`Defendants of their violation more than sixty days prior to the filing of this
`
`Complaint, as required by the ESA. See 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.
`
`5
`
`
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`11. Venue is proper in the U.S. District Court for the District of Hawaiʻi
`
`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. See 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 10 species
`
`of animals and 39 species of plants in Hawaiʻi, 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).
`
`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 Hawaiʻi. Ensuring the survival and recovery of threatened
`
`and endangered species is at the core of the Center’s mission. Through science,
`
`policy, and environmental law, the Center is actively involved in species and
`
`habitat protection issues throughout the United States, including efforts related to
`
`6
`
`
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`Case 1:22-cv-00373-HG-WRP Document 1 Filed 08/11/22 Page 7 of 19 PageID #: 7
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`the Hawaiʻi’s 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 in Hawaiʻi. The Center’s
`
`members and staff have researched, studied, observed, and sought protection for
`
`these thirty-nine species of plants and 10 species of animals in Hawaiʻi. In
`
`addition, the Center’s members and staff are either from or have visited and
`
`enjoyed Hawaiʻi where these forty-nine species occur, and they have sought out
`
`and observed these species in the Hawaiian Islands. The Center’s members and
`
`staff have plans to continue to visit and observe, or attempt to observe, these
`
`species in the future. The Center’s members and staff derive scientific,
`
`recreational, cultural, conservation, spiritual, educational, and aesthetic benefits
`
`from these forty-nine species of plants’ and animals’ existence in the wild.
`
`16. For example, one member of the Center, is a scientist who has sought
`
`out, observed, cataloged, photographed, and researched these plant and animal
`
`species in Hawaiʻi. He is concerned about the pressing need to conserve these
`
`species’ critical habitat.
`
`17. The Center’s members’ and staff’s enjoyment of these forty-nine
`
`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
`
`7
`
`
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`habitat for these forty-nine 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 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. The Service’s failure to comply with the ESA’s nondiscretionary deadlines
`
`to designate critical habitat for these forty-nine species denies these threatened and
`
`endangered plants and animals vital protections that are necessary for their survival
`
`and recovery. Without the additional protections provided by the designation of
`
`critical habitat, these forty-nine 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 forty-nine species of
`
`plants and animals are threatened by the Service’s violations of the ESA. The
`
`above-described scientific, cultural, aesthetic, recreational, spiritual, educational,
`
`conservational, 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.
`
`8
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`
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`19. 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. The relief requested will fully redress those
`
`injuries.
`
`20. Defendant DEBRA HAALAND is the 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. Secretary
`
`Debra Haaland is sued in her official capacity.
`
`21. 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. §
`
`9
`
`
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`402.01(b). This authority encompasses timely compliance with the ESA’s
`
`mandatory deadlines to designate critical habitat.
`
`22. Defendant MARTHA WILLIAMS is the Director (“Director”) of the
`
`U.S. Fish and Wildlife Service and is the federal official responsible for the
`
`administration and the implementation of the ESA and APA in timely designating
`
`the critical habitat of an endangered or threatened species. The Director is sued in
`
`her official capacity.
`
`LEGAL BACKGROUND
`
`23. 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 to 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
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`10
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`species to the point at which the measures provided pursuant to this chapter 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 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).
`
`26. 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).
`
`27. Concurrent with listing a species, the ESA requires the designation of
`
`critical habitat. Id. § 1533(a)(3)(A)(i) (“The Secretary . . . shall, 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).
`
`11
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`28.
`
`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
`
`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.”
`
`Id. § 1533(b)(6)(C)(ii).
`
`29. 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 1533 [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.” Id. § 1532(5); see also 50 C.F.R. § 424.12(b).
`
`30. 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:
`
`[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
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`12
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`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
`
`species with critical habitat are more than twice as likely to be in recovery than
`
`those without it.
`
`32. 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.
`
`33. 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).
`
`34. Federal agencies must ensure through consultation with the Service
`
`that any action federal agencies authorize, fund, or carry out will not “jeopardize
`
`the continued existence of any [ESA-listed] species.” Id. § 1536(a)(2). For
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`13
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`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.
`
`35. The ESA’s citizen suit provision provides for judicial review where
`
`the Service has failed to perform a mandatory duty under ESA section 4. Id. §
`
`1540(g)(1)(C).
`
`FACTUAL BACKGROUND
`
`36. On September 30, 2016, the Service listed forty-nine species from the
`
`Hawaiian Islands as endangered: Asplenium diellaciniatum, Calamagrostis
`
`expansa (Maui reedgrass), Cyanea kauaulaensis, Cyclosorus boydiae (kupukupu
`
`makaliʻi), Cyperus neokunthianus, Cyrtandra hematos (haʻiwale), Deparia
`
`kaalaana, Dryopteris glabra var. pusilla (hohiu), Exocarpos menziesii (heau),
`
`Festuca hawaiiensis, Gardenia remyi (nānū), Huperzia stemmermanniae, Hylaeus
`
`anthracinus (Yellow-faced bee), Hylaeus assimulans (Yellow-faced bee), Hylaeus
`
`facilis (Yellow-faced bee), Hylaeus hilaris (Yellow-faced bee), Hylaeus kuakea
`
`(Yellow-faced bee), Hylaeus longiceps (Yellow-faced bee), Hylaeus mana (Yellow-
`
`faced bee), Hypolepis hawaiiensis var. mauiensis (olua), Joinvillea ascendens ssp.
`
`ascendens (ʻohe), Kadua fluviatilis (kamapuaʻa), Kadua haupuensis, Labordia
`
`lorenciana, Lepidium orbiculare (ʻānaunau), Megalagrion xanthomelas
`
`14
`
`
`
`Case 1:22-cv-00373-HG-WRP Document 1 Filed 08/11/22 Page 15 of 19 PageID #: 15
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`(Orangeblack Hawaiian damselfly), Microlepia strigosa var. mauiensis, Myrsine
`
`fosbergii (kōlea), Nothocestrum latifolium (ʻaiea), Oceanodroma castro, (Band-
`
`rumped storm-petrel), Ochrosia haleakalae (hōlei), Phyllostegia brevidens,
`
`Phyllostegia helleri, Phyllostegia stachyoides, Portulaca villosa (ʻihi), Pritchardia
`
`bakeri (Baker’s loulu), Procaris hawaiana (Anchialine pool shrimp),
`
`Pseudognaphalium sandwicensium var. molokaiense (ʻenaʻena), Ranunculus
`
`hawaiensis (makou), Ranunculus mauiensis (makou), Sanicula sandwicensis,
`
`Santalum involutum (ʻiliahi), Schiedea diffusa ssp. diffusa, Schiedea pubescens
`
`(maʻoliʻoli), Sicyos lanceoloideus (ʻānunu), Sicyos macrophyllus (ʻānunu),
`
`Solanum nelsonii (pōpolo), Stenogyne kaalae ssp. sherffii, and Wikstroemia
`
`skottsbergiana (ʻākia). 81 Fed. Reg. 67,786 (Sept. 30, 2016). 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).
`
`37. The Service failed to designate critical habitat concurrently with its
`
`September 30, 2016, rule listing these forty-nine species as endangered and
`
`threatened. 81 Fed. Reg. 67,786. Since the Service found critical habitat was not
`
`determinable at that time, the Service had until September 30, 2017, to publish
`
`final critical habitat designations. See 16 U.S.C. § 1533(b)(6)(C)(i-ii). However,
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`15
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`the Service has yet to designate critical habitat for any of these forty-nine Hawaiian
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`species.
`
`38. The Service’s failure is inexcusable as it has recognized that each
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`listed species was threatened with the finality of extinction due to every reason
`
`warranted for listing, including numerous threats to their habitat. 81 Fed. Reg.
`
`67,786. Habitat loss and degradation were thoroughly cited by the Service as
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`significant threats to the longevity of these species. Id. at 67,786, 67,792–67,823.
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`The limited habitat available to these species is threatened by loss and degradation
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`“due to urbanization; nonnative feral ungulates (hoofed mammals, e.g., pigs, goats,
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`axis deer, black-tailed deer, mouflon, and cattle); nonnative plants; wildfire; and
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`water extraction.” Id. at 67,786.
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`39. Further, habitat loss and degradation are expected to be exacerbated
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`by climate change through sea level rise and coastal inundation. Id. at 67,787.
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`40. 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
`
`significant portion of their range. Id. at 67,786.
`
`41. The Service’s delay in designating critical habitat for these forty-nine
`
`Hawaiian species violates its non-discretionary duties under the ESA, deprives
`
`16
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`
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`Case 1:22-cv-00373-HG-WRP Document 1 Filed 08/11/22 Page 17 of 19 PageID #: 17
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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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`CLAIM FOR RELIEF
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`Violation of Endangered Species Act in Failing to Designate Critical Habitat
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`42. 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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`43. Under section 4 of the ESA, the Service has a mandatory, non-
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`discretionary duty to designate critical habitat for the forty-nine species
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`concurrently with its listing decision. See 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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`44. To date, five years after the listing, the Service has failed to designate
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`nor has the Service proposed critical habitat for these forty-nine Hawaiian species.
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`45. The Service’s failure to timely designate critical habitat for these
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`forty-nine Hawaiian species violates section 4 of the ESA. Id. § 1533.
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`
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`17
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`
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`Case 1:22-cv-00373-HG-WRP Document 1 Filed 08/11/22 Page 18 of 19 PageID #: 18
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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 forty-nine
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`Hawaiian species, 16 U.S.C. § 1533(a).
`
`2.
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`Order the Service to propose and finalize critical habitat rules for
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`these forty-nine Hawaiian species by dates certain;
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`3.
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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: August 11, 2022
`
` 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
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`18
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`
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`Case 1:22-cv-00373-HG-WRP Document 1 Filed 08/11/22 Page 19 of 19 PageID #: 19
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`Email: mphillips@biologicaldiversity.org
`
`Brian Segee (CA Bar No. 200795),
`pro hac vice application forthcoming
`CENTER FOR BIOLOGICAL DIVERSITY
`660 S. Figueroa St., Suite 1000
`Los Angeles, CA 90017
`Phone: (805) 750-8852
`Email: bsegee@biologicaldiversity.org
`
`Attorneys for Plaintiff
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`
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`19
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`
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