Supreme Court

Can Land Uninhabitable by an Endangered Species Nonetheless Be 'Critical Habitat' Under the Endangered Species Act?

The Supreme Court is asked to review an expansive interpretation of the Fish & Wildlife Service's authority to designate critical habitat for listed species.

|The Volokh Conspiracy |

The dusky gopher frog is an endangered species—and the subject of substantial litigation. Once found throughout several southeastern states, the frog is only extant in parts of Mississippi, all located within a single county. The U.S. Fish & Wildlife Service would like to see the frog restored to more of its historic range, including parts of Louisiana, but that's easier said than done. The dusky gopher frog is apparently quite particular about the sorts of lands it will inhabit, and there's not much land within its historic range that contains all of the relevant features—and therein lies a problem.

In 2012, the FWS designated "critical habitat" for the dusky gopher frog, as is required under the Endangered Species Act (ESA). In doing so, the FWS identified lands inhabited by the frog—largely areas with open-canopied pine forests and ephemeral ponds. More controversially, the FWS also designated parts of Louisiana—an area called Unit 1—as "critical habitat" for the frog, even though it the land in question is not inhabited by any frogs, nor does it contain all of the features the FWS maintains are essential for the frog's survival.

The FWS' critical habitat designation did not sit to well with those who own and wish to use the land in Unit 1. Listing land as critical habitat does not automatically impose obligations on private landowners under the ESA, but it can make it more difficult to obtain federal permits required under other statutes (such as a Section 404 permit to fill a wetland under the Clean Water Act) and reduce land values. By the FWS' own estimates, designating Unit 1 could cost the landowners as much as $34 million.

As one might expect, the landowners sued. Among other things, the landowners argued that land that is neither habitable nor inhabited by an endangered species cannot be "essential" for the species' survival as the ESA requires. They further argued that the FWS failed to adequately consider the economic effects of including Unit 1 in the critical habitat designation.

A federal district court in Louisiana rejected the landowners challenge to the critical habitat designation, as did a divided panel of the U.S. Court of Appeals for the Fifth Circuit. A petition for rehearing en banc was rejected 8-6, over a forceful dissent by Judge Edith Jones. Now the landowners are seeking Supreme Court review, and the Court is due to consider the petitions on Friday.

Petitions for certiorari have been filed by the Pacific Legal Foundation (on behalf of several of the landowners) and Weyerhaeuser Co. Quite a few amici have filed in support of the petitions too. (See the brief listings here.) In many respects, Judge Jones' dissent from denial of rehearing en banc could be seen as petition for certiorari all its own.

Judge Jones first argued that critical habitat must be habitable.

No one disputes that the dusky gopher frog cannot inhabit Unit 1. The panel majority find that fact irrelevant, however, because looking only at the statute's definitional section, the ESA does not appear to require that a species actually be able to inhabit its "unoccupied critical habitat." They dismiss habitability as an "extra-textual limit" that cannot be found in either "the text of the ESA or the implementing regulations." . . . Read in context, however, the ESA makes clear that a species' critical habitat must be a subset of that species' habitat. The ESA's implementing regulations are consistent with this subset arrangement. Further, when Congress got around to clarifying critical-habitat regulation in 1978, the contemporary understanding of critical habitat, shared alike by the most fervent proponents and opponents of wildlife and habitat protection, was that it meant a part of the species' actual habitat.

Judge Jones further argued that accepting the FWS interpretation of its own authority would, in practice, make it easier to designate unoccupied land as critical habitat than to designate land actually inhabited by the species in question. Such a construction, Judge Jones noted, would make no sense. Fortunately, no such construction is required by the ESA's text. To the contrary, Judge Jones argued, the ESA's "text, drafting history, and precedent" all "confirm the commonsense notion that the test for unoccupied critical habitat is designed to be more stringent than the test for occupied critical habitat."

A third problem with the panel decision identified by Judge Jones was its conclusion that the FWS' refusal to exclude Unit 1 from the critical habitat designation was unreviewable. This conclusion, Judge Jones noted, seems to "clash" with the Supreme Court's holding in Bennett v. Spear that the FWS is required to consider the economic impact of a critical habitat designation and that the failure to do so is subject to judicial review.

In simplest terms, Markle Interests LLC v. FWS (aka Weyerhaeuser v FWS) asks the Court to decide whether land must, in fact, be habitable, if not actually inhabited, by an endangered species. It also implicates broader questions about the scope of federal regulatory authority over private land. Regulation of endangered species habitat may (or may not) be justified as a "necessary and proper" to the regulation of commerce among the states, but it's hard to see how such authority can reach land that has no clear or direct connection to such species (a point made by the Cato Institute in a separate amicus brief).

While this case is not a proper vehicle to consider the constitutional limits on endangered species regulation, such concerns could influence how the Court perceives the case. Just as the Supreme Court interpreted the scope of federal regulatory authority under the Clean Water Act narrowly in SWANCC and Rapanos so as to avoid confronting difficult constitutional questions about the scope of federal authority, the Court could adopt such a narrowed construction here. Yet to do so, it would first have to accept cert in this case.

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  1. More controversially, the FWS also designated parts of Louisiana — an area called Unit 1 — as “critical habitat” for the frog, even though it the land in question is not inhabited by any frogs, nor does it contain all of the features the FWS maintains are essential for the frog’s survival.

    Ok, I give up. What is FWS’s side of the story? What is their motive and rationale for their actions? Why do they believe it is necessary to set aside land for the frog if the frog cannot occupy the land?

    1. Some possibly relevant quotes from the Fifth Circuit decision:

      * Although the dusky gopher frog has not occupied Unit 1 for decades, the land contains historic breeding sites and five closely clustered ephemeral [breeding] ponds.

      * […] as an expert explained at the public hearing on the Revised Proposal, it is “much easier to restore a terrestrial habitat for the gopher frog than to restore or build breeding ponds.”

      * Like their proposed habitability requirement, the Landowners’ proposed temporal requirement? considering whether the frog can live on the land “currently” or in the “foreseeable future”?also lacks legal support and is undermined by the ESA’s text.

      * We hold […] that in this case, substantial, consensus, scientific evidence in the record supports the Service’s conclusion that the ephemeral ponds present on Unit 1 are essential for the conservation of the dusky gopher frog.

      The overall idea seems to be that at some indeterminate point in the future, if all goes well, the FWS expects to purchase the land in question and convert it into a suitable habitat, that the designation is the only way to make sure that it remains possible to do so, and that being able to do so is essential to the conservation of the dusky gopher frog.

      1. Mr. Johnston sums it up well. Unit 1 contains one of the three features that the FWS believes the frog requires — and, to be fair, the feature that the FWS believes is most difficult to replicate — and it hopes that this could be the basis of future restoration efforts, even though the FWS cannot require that any restoration take place on that land. For this reason, the plaintiffs suspect/allege that the FWS is hoping to use the designation as leverage to induce the landowners to engage in habitat restoration within Unit 1 — restoration that the ESA does not authorize the FWS to require.

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        2. Just curious. “Restoration” seems to imply previous degradation. Was that degradation which the FWS was authorized to prohibit?

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  2. “The overall idea seems to be that at some indeterminate point in the future, if all goes well, the FWS expects to purchase the land in question and convert it into a suitable habitat, that the designation is the only way to make sure that it remains possible to do so”

    All of which would be a colossal waste of money because not only are there no dusky gopher frogs on the disputed lands, there are no dusky gopher frog populations in the entire state, and the FWS does not have legal authority to re-introduce them.

    “and that being able to do so is essential to the conservation of the dusky gopher frog.”

    That claim is absurd given the lack of near by frog populations and FWS’s lack of authority to re-introduce them.

    1. What specific legal barriers would prevent the re-introduction of the dusky gopher frog, assuming that the FWS owned the land and wished to do so?

      1. The FWS doesn’t own the land and has no plans to acquire it, so that’s a major assumption.

        As for other obstacles, there is some reason to believe that effective habitat restoration is easier said than done, but the ephemeral ponds are likely the hardest thing to recreate effectively.

      2. 1. The US Federal government cannot acquire land in a state without the consent of the state government. The Feds own so much of the west because they had control of the land prior to the formation of the western states and never ceded the land to the state governments. The National monument designations created by Obama that were undone by Trump were already federal land.

        2. Because a species re-introduced to federal land won’t necessarily stay on that federal land, they may (probably) need the consent of the state government for any re-introduction program.

        1. Huh. OK, genuine confusion here: that doesn’t sound like a problem. Are you saying that the state government will definitely refuse permission? Why?

        2. First point seems reasonable enough.

          Almost certainly disagree on (2), there’s no way that a Federal agency needs the consent of the State government to put an animal on federal land. The States cannot positively with a federal function like that.

  3. There is a rather confusing typo in a quote from Judge Jones’s dissent: in “confirm the commonsense notion that the test for occupied critical habitat is designed to be more stringent than the test for occupied critical habitat”, in the dissent, the first “occupied” was written “unoccupied”.

    1. Thanks. Fixed.

  4. Can Land Uninhabitable by an Endangered Species Nonetheless Be “Critical Habitat” under the Endangered Species Act?

    Treating that as an ecological question, instead of a legal one, it is easily answered in the affirmative. To take just one famous example, critical habitat for wolves in Yellowstone Park turned out to be critically important too for trout, which of course can not live on land among wolves. But, after re-introducing wolves into Yellowstone, it was found that they drove elk out of streams. Although no one suspected it, removal of predatory pressure by wolves had enabled elk browsing of stream-bank vegetation. That had been degrading trout breeding habitat?by muddying the water, and by detrimentally warming it because of increased sun exposure. Re-introduced wolves drove the elk back onto their previously-favored mountainside habitats?with a resulting resurgence in stream bank vegetation, clearer water, and more cooling shade for trout breeding areas. Trout breeding success and abundance improved accordingly.

    The question Adler really seems to be asking is whether by exploiting legal disregard for science the courts can be fooled into letting development interests circumvent the Endangered Species Act.

    1. Your example is hardly analogous. The claim is not that the Unit 1 could not be made habitable, but that unless and until it is made so, can it be considered essential habitat. Were the FWS not merely designating Unit 1 but seeking to acquire it so that it could ensure restoration efforts would take place, we would have a very different question. (Of course, that would involve having a very different ESA than the one we have, albeit one that would likely be more successful at recovering species.)

    2. This type of analysis you offer has always made me laugh. Previous conservation efforts of driving out wolves from Yellowstone showed to have more negative consequences than we intended… so give us a second chance at more conservation efforts and we pinky swear we won’t have any more negative effects.

      You claim this action is science, it is not. If it was science the negative effects of initial conservation efforts would have been studied prior to any action; it wasn’t. This is policy by trial, no science.

      1. You claim this action is science, it is not. If it was science the negative effects of initial conservation efforts would have been studied prior to any action; it wasn’t. This is policy by trial, no science.

        What makes me laugh is demands that science be perfect in retrospect. That is policy by hostility to expertise, no science.

        1. What should really make you laugh is the idea that species conservation policy is driven by scientific concerns. It isn’t. Science can help effectuate the policy choices made, but it doesn’t drive them. I make this point at greater length here.

    3. Except it appears that the illegal introduction of lake trout to Yellowstone had more impact on the decline in the elk population than the reintroduction of wolves did.

  5. I’ve not read ESA’s defense, but does it have anything to do with the fact borderlands and buffer zones are crucial to preserving critical habitable areas? Applying strict constructionism to natural systems is disastrous to those systems, unintentionally or otherwise.

    Allowing development up to the first row of trees or line of grasses will absolutely result in the recession of, and human infringement upon, the outer edge of a critical habitat. Wait a few years, and there’s now more “uninhabitable” land that should have its critical habitat designation removed or strictly curtailed. Rinse and repeat.

    1. Sorry, FSW.

      1. Hah! Fish & Wildlife. (Ohhh, “preview”! That’s what that means….)

      2. Hah! Fish & Wildlife. (Ohhh, “preview”! That’s what that means….)

    2. For the other side, see the panel opinion linked above. See also, the SG’s brief against certiorari, which is available here.

      The reason FWS designated Unit 1 was not to create a buffer zone. Rather it is because Unit 1 contains one (of three) important features upon which the frog relies (ephemeral ponds). According to the FWS, the existence of these ponds could provide the foundation for future habitat restoration efforts. The problem, however, is that the FWS lacks the authority to require any such efforts in Unit 1, so any benefit to the frog of the designation is completely speculative.

      1. So: we have a legally mandated goal, Y, and are evaluating a possible action X by the criteria “is X essential to achieving Y”.

        From my brief look at the record, it has been decided that goal Y cannot be achieved if action X is not taken and this claim is not currently being challenged.

        It is unclear whether or not goal Y can be achieved if action X is taken, it may in fact be unlikely.

        From a non-legal, i.e., ordinary logic perspective, the criteria is met, unambiguously; “X is essential to Y” means exactly “Y cannot be achieved without X” and makes no claim that Y can be achieved at all.

        Is the legal perspective different? Or is the issue just more complicated than that, in ways not immediately obvious to the layman?

        … I mean, perhaps the law OUGHT to allow for the possibility of just giving up if success seems too unlikely, but does it?

      2. Once again, did the FWS have the authority to prevent the degradation to Unit 1 in the first place? If it did, isn’t it disingenuous to pretend that the only issue is whether FWS has explicit authority to do restoration?

        1. Why? Even assuming that the FWS had the authority at one time, why would their failure to exercise that authority be relevant to what they are entitled to do now?

  6. Hah! Fish. And. Wildlife. (Hmm, “preview”. What’s that?)

  7. The real problem here is we are willing to financially ruin actual human beings to save a handful of frogs that nobody will miss.

  8. This post and subsequent comments is a prime example of why you want to introduce a little concession to the other side not being crazy idiots. Otherwise, you make people curious and they’ll reframe your points for you.

    This is a pretty friendly crowd, and you nearly lost them.

    1. What the hell are you blathering on about?

      1. There was zero shrift given to the FWS position, and the main opinion. Instead, the framing was that the dissent was the only side saying anything worth saying.
        This extreme set of facts led me, and at least two of the initial commenters, to read the main opinion and provide more nuance. Even Adler endorsed Harry M Johnson’s addition of the other side’s position.

        And Stephen Lathrop took a contrary position.in some detail based on that framing.

        Did you not find the OP to be too one-sided?

        1. And Stephen Lathrop took a contrary position

          SL’s gonna SL no matter how you frame something. And this was particularly nutty, as he was claiming that it was critical habitat for the wolves because the wolves living there made it habitable for the fish, which are not required for wolves to live there.

  9. This is exactly the sort of contorted reasoning that I have come to expect from “convervationists” at all levels: get a law / regulation passed that has clear statements of conditions and limitations, then proceed to ignore or talk around anything that limits their authority to steal restrict a property owner’s ability to use his land.

    1. (Speaking from personal experience. And yes, I’m bitter, and pissed off about the resources [time and big money] spent to get surveys and plans done, when the local environazis could have told me up front that it was a no-go and saved me a bundle, and then be arrogantly nasty when making their ruling as well.

      But it’s the little ones that they just beat down, until someone with some deep pockets takes them on and shows them for what they really are.

    2. Masking general hostility to the concept of environmental regulation by a group accusation of bad faith is pretty weak.

      That’s not ignoring or talking around, that’s how litigation works. And though environazi is cute, going to court to get permission is certainly not how Nazis worked.

  10. Funny how if the FWS was honest about its intentions, they wouldn’t look so much like anti-science idiots. But then, they’d have to actually work publicly instead of undermining property rights in court.

    1. How were they dishonest? It was right their in their published findings…

    2. Apart from the FISA court, the courts are public.

  11. “The U.S. Fish & Wildlife Service would like to see the frog restored to more of its historic range, including parts of Louisiana,”

    Alternatively, I would like to see the frog in a different historic range, like when it didn’t exist.
    Why is the USF&W picking that particular time?

  12. A bunch of unconstitutional blathering.
    Everybody knows that the theory of evolution is accepted science. The theory of evolution includes species extinction as a necessary part of evolution. That is science, known as the state.
    The Christian bible, in the book of Genesis clearly gives man power and control over all plant and animal life on earth. That is religion, know as church.
    Tomas Jefferson added the famous letter amendment to the constitution prohibiting the mixture of church and state. So any effort whatsoever by the state to in any way alter the natural, scientific, process of evolution is unconstitutional.
    In fact, all the ‘environmental’ groups should be classified as religions, and ignored by the state in all ways at all levels.

    1. I’ve called tech support, my monitor is only showing half of the colon after the word blathering. 🙁

  13. The unquestioned moral assumption here is that no species should ever go extinct or have its habitat encroached upon by other more fit species. The fossil record presents millions of contradctions with that moral system.

    1. Is the fossil record required to act in a moral fashion?

    2. Would you be content with environmental regulations predicated on holding the rate of present-day extinctions to the extinction rate provable by the fossil record?

      1. That’s practically impossible. And I don’t mean that in the “very difficult” sense, but in the “there is no way we could do that without causing a massive global catastrophe for humanity, and even then it still probably wouldn’t work” sense

  14. As a policy matter, seems like it would have to be or else someone could just pollute their way out of environmental regulations.

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