ELR Citation: ELR 20853
No(s). 84-1640 (9th Cir. Aug 27, 1985)

The court holds that federal involvement in planning and construction of the Barbers Point, Hawaii deep draft harbor has not violated the Endangered Species Act (ESA) or the National Environmental Policy Act (NEPA), and that plaintiff lacks standing to challenge the project's cost-benefit analysis under the Water Resources Development Act (WRDA). The court first holds that a plant growing in the project area that had been proposed for listing under the ESA was not due the same protection as if it had been actually listed. Agencies must prepare an assessment of a project's effect on proposed species and must confer with the Fish and Wildlife Service (FWS) about impacts, but are not bound by the more stringent prohibitions that apply to listed species. The Army Corps of Engineers and FWS have complied with the requirements for proposed species. Although in its environmental impact statement (EIS) the Corps stated it would treat the plant as if it were listed, the court declines to estop the Corps from denying it owed the plant ESA protection. The court further rules that the Secretary of the Interior did not abuse his discretion under the 1973 version of ESA §4(a)(3) by failing to designate critical habiat for the plant when it was eventually listed. Although the statute and its legislative history suggest that the Secretary may only decline to designate critical habitat in rare circumstances, the Secretary may decline to act when, as here, he finds he lacks adequate information about the species to determine critical habitat. Further, since only 2 percent of the plant's population grew within the project area, the Secretary's failure to designate the area as critical habitat cannot be held arbitrary or capricious.

Turning to NEPA claims, the court first holds that the Corps did not violate NEPA by failing to analyze the impacts of state-planned shoreside facilities associated with the harbor. The harbor project and shore facilities are not so functionally interdependent as to constitute a single federal action. The state facilities are completely state-funded, and the federal government exercised no control over their funding or development. The court also holds that the Corps adequately discussed the socioeconomic effects of the project. The effects involved are speculative, and the EIS adequately alerted decisionmakers and the public to the possible impacts. On a final NEPA point, the court holds that the Corps need not supplement the EIS to discuss an increase in habor size already mentioned in a supplement, archeological discoveries that the Corps has found to be insignificant, revised projections of population growth, a proposed local land use plan, possible impact of the project on rural lifestyles, or the formal decision to list the proposed plant as endangered.

Finally, the court addresses claims that the Corps improperly used a WRDA discount rate of 3.25 percent in its cost-benefit analysis. The court declines to rule on whether use of this low rate violated NEPA because plaintiff failed to raise this question before the trial court. The court holds that plaintiff lacks standing under the WRDA to raise a challenge to use of the rate under the WRDA because he has failed to show that actual injury would occur if the Corps were to continue to use the lower rate.

Counsel for Appellant
Alan T. Murakami
Native Hawaiian Legal Corp.
1164 Bishop St., Suite 900, Honolulu HI 96813
(808) 521-2302

Boyce R. Brown Jr.
Brown & Johnston
222 Merchant St., Honolulu HI 96813
(808) 521-5337

Counsel for Appellees
Fred R. Disheroon, Claire L. McGuire, Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7361

Michael Chin, Ass't U.S. Attorney
Rm C-242, PJKK Federal Bldg., Box 50183, 300 Ala Moana Blvd. Honolulu HI 96850
(808) 546-7170

Randall Y.K. Young, Deputy Attorney General
Department of the Attorney General
State Capitol, Honolulu HI 96813
(808) 548-4747

Before Hug, Jr., and Schroeder, JJ.