## Facts

- Conservation organizations challenged U.S. Fish and Wildlife Service (FWS) final rules declining to designate critical habitat for 245 listed Hawaiian plant species.
- The Endangered Species Act (ESA) generally requires critical habitat designation at listing “to the maximum extent prudent and determinable.”
- FWS used a uniform, categorical rationale across species rather than species-specific findings.
- FWS asserted (1) designation would publicize locations and increase illegal take, (2) designation on private land provided no benefit absent a federal nexus, and (3) designation on federal land was redundant because ESA § 7 consultation already protected species.
- Plaintiffs sued under the ESA and the Administrative Procedure Act (APA), alleging the non-designation rules were contrary to law and arbitrary and capricious.
- The parties filed cross-motions for summary judgment; the court later issued a remedial scheduling order establishing deadlines for reconsideration on remand.

## Issues

1. Whether FWS’s blanket “not prudent” determinations for 245 Hawaiian plant species complied with the ESA’s critical-habitat mandate.
2. Whether FWS acted arbitrarily, capriciously, or contrary to law under the APA by relying on generalized rationales instead of a reasoned, species-specific analysis considering relevant factors.

## Decision

- The court granted plaintiffs’ motion for summary judgment and denied defendants’ cross-motion.
- The court held FWS’s “not prudent” determinations and refusal to designate any critical habitat for the 245 species were arbitrary, capricious, and contrary to law under the ESA and APA.
- The court remanded to FWS for reconsideration consistent with the court’s opinion and stated it expressed no view on whether any particular species ultimately should receive a critical habitat designation.
- In a later order, the court imposed a timetable requiring FWS to complete reconsideration by specified deadlines.

## Legal Principles

- Under the ESA, critical habitat designation is the presumptive outcome at listing; “not prudent” is an exception requiring a reasoned justification.
- APA arbitrary-and-capricious review requires the agency to consider all relevant factors and articulate a rational connection between the record and its decision.
- FWS may not treat “not prudent” as a categorical policy for a broad class of species; prudency determinations must be supported by evidence and made on an appropriately individualized basis.
- Speculative assertions about increased illegal take are insufficient to justify categorical non-designation without an evidence-based showing tied to the affected species.
- Critical habitat is a distinct statutory protection and cannot be rejected as legally pointless on the theory that § 7 consultation makes it redundant; the agency must account for the separate legal and conservation functions of designation, including effects on federal actions and planning.

## Conclusion

The court invalidated FWS’s across-the-board refusal to designate critical habitat for 245 Hawaiian plant species because the agency relied on generalized assumptions and failed to weigh relevant statutory considerations in a reasoned, species-specific manner, and it remanded for timely reconsideration under the ESA and APA.


Conservation Council for Haw. v. Babbitt, 2 F. Supp. 2d 1280 (D. Haw. 1998)