U. S. District Court Releases Opinion on Critical Habitat

A District Court of Guam decision (June 13, 2003) to grant the Government of Guam four more months to address the matter concerning critical habitat, was awarded in a later hour victory - extending the deadline for the Government – initially until October of this year to try to convince conservationists that they can contribute to the preservation of the environment on Guam in a way that could make a designation of large areas of the island as “critical habitat” unnecessary.

The proposed Critical Habitat designation covers much of the northernmost tip of the Island of Guam. An area many refer to as Andersen since much of the area is owned by the U. S. Air Force, with an air strip leading off into the water. Just outside the base, heading towards the Fish & Wildlife Refuge is an old air strip referred to as Northwest Field.

The following map shows the areas being considered for critical habitat in the north:

There is a shard that covers the area around Potts Junction to the entire northern tip (Andersen Air Force Base) and another shard coming down as far as Dededo area past Mt. Santa Rosa on the eastern side of the island.

Mr. Paul Henson

The other important aspect of the proposed habitat area is a large valley formed circle that encompasses the Fena Lake and the Ordinance Annex; area commonly referred to as Naval Magazine in Santa Rita that is proposed as critical habitat.

Clear Waters - Fena Lake Reservoir at Naval Forces Marianas Ordnance Annex, commonly referred to as Naval Magazine. Fena is Guam's only fresh-water reservoir spanning 200 surface acres. The Ordnance Annex can be seen at the top-left corner of the photo above, in the valley. The lake is home to Peacock Bass, Tilapia and Catfish, and limited to no fishing is allowed. The lake is fed by rivers and a water spring.

MUDDY WATERS - This extremely muddy photo of Fena Lake was taken after Typhoon Chata'an's caused widespread damaged to Guam with its associated winds and rain. Erosion damage in the area also contributed to the very high turbidity in the lake.

A critical point that the Court took into account in the decision addresses the long term impact of designation of critical habitat and is the process reversible. During oral arguments, the Court asked Plaintiff’ council whether the designation of critical habitat was reversible, to which council responded, “Under the Endangered Species Act, the government is mandated to insure that no action is taken which could jeopardize the continued existence of the endangered species in the wild,” and in keeping with that mandate, “the designation of critical habitat would not be subject to change if the designated land was the only place that endangered species could survive.”

This is a very critical point in the consideration since there are not many choices Fruit Bats have that can influence their survival. Already, the only colony of Fruit Bats is on Air Force property. Designations for other endangered species are generally made in the same area because of the denseness of the area. The Court apparently noticed the curtail point in rendering of its decision.

The Court found that this is a very crucial exception which warrants close study since there is a very large swath of land sought to be designated as critical habitat. The Court’s decision points out that “irreversibility or even the possibility of such certainly demands that the designations be made after the most careful and thorough analysis and consideration of all viable alternatives.” This apparently to make sure that the designation is done correctly the first time it is performed.

The irony in the entire discovery process is the Military has been a very diligent caretaker of the endangered species in the area that the Court saw its ability to continue to enforce the physical integrity of the lands under its jurisdiction which includes the hunting prohibitions that has ensured the protection of the species all these years. Had they not been good stewards the species would have been extinct a long time ago. Therefore, there is credit due to the Air Force for their role in protecting critical habitat and endangered species.

The Court concluded that irreparable harm would not come from extending the deadline four more months to further study further determine alternatives to designation of critical habitat and granted the Government of Guam’s request.

The court took notice of the public comment period as being a time when the island’s politics, and recovery from two typhoons and a fire consuming jet fuel rendering the island hostage to limited gas resource served as deterring factors in the Government’s ability to respond in a timely fashion to the comment period.

The decision pointed out the impact of the destructive force of Super Typhoon Pongsona and its effect on the island’s ability to bounce back and return to normalcy. The typhoon, “reportedly the worst typhoon to hit Guam in the last 30 years,” stated the Court, “knocked out, water, power, radio, and telephone services to the island for the majority of the response time.” It also pointed out that much of the Government’s time and resources were consumed in the restoration of basic services and coordination of disaster recovery assistance and the advent of a new administration’s need to understand the subject well enough to develop a position on the matter.

What is the practical effect of critical habitat? If there is any development project by the Federal Government in that area, they can’t proceed unless it respects the Critical Habitat. This is a very interesting aspect of the designation of Critical Habitat in Guam.

And, it raises a very important question; what limitations will critical habitat have in the advent of increased military presence on Guam and their activities regarding national defense matters? This is especially important with the concern over what is happening in North Korea.  Could Critical Habitat hamper the increased presence of the military and purpose due to the restrictions of the designation?

It certainly could affect their ability to build supply depots for example. Or in the case of the possible need to expand Fena Reservoir to support increased military activities. If Fena Valley were designated Critical Habitat, what impact do you suppose it will have in the limitation of the interest of National Defense?

The Courts granting of GovGuam the extended period to consider alternatives will do some good in allowing time to balance concerns for the preservation of endangered species and the endangerment of the island’s national security.