The endangered dusky frog is at the center of a high-profile legal dispute.
U.S. Department of Agriculture/Wikimedia Commons (CC BY 2.0)
U.S. Supreme Court ruling in frog case highlights debate over definition of ‘habitat’
The dusky gopher frog's long legal journey isn't over yet.
The U.S. Supreme Court yesterday remanded a closely watched dispute
over the federal government's power to designate certain critical
habitat for the rare southern amphibian.
The 5th U.S. Circuit Court of Appeals will now weigh loaded
questions over the meaning of "habitat" and the Fish and Wildlife
Service (FWS) analysis underpinning the agency's approach to protecting
land for the warty frog.
The unanimous decision is
a narrow victory for private landowners, including timber giant
Weyerhaeuser Co., which opposed FWS's inclusion of their Louisiana
property as critical habitat for the species, one of the 100 most
endangered in the world.
The ruling wipes out a 5th Circuit decision that upheld the habitat
designation. While the land protections will remain in place for now,
the landowners have an opportunity to make their case to the appeals
court that their land doesn't count as "habitat" for the frog and
therefore cannot be included.
"The nation's hardworking property owners can rest easier tonight
knowing government-sponsored land grabs just became a lot more
difficult," said attorney Mark Miller of the Pacific Legal Foundation in
Sacramento, California, who represented some of the landowners, in a
statement.
Government officials declined to comment on the ruling, but
environmentalists who intervened on FWS's side stressed that the Supreme
Court did not actually answer many of the key legal questions in the
case.
"Considering how narrow it was, if we were going to lose, this is a
good way to lose," says Collette Adkins a senior attorney Center for
Biological Diversity who is based in Minneapolis, Minnesota. "It's
technically a loss, but it's so narrow that it's a punt."
At issue in the case is FWS's 2012 decision to include more than 1500
acres of private land in Louisiana in its designation of critical
habitat for the dusky gopher frog. FWS and consulting scientists
identified the property as having the type of ephemeral ponds perfect
for the animal's recovery.
The frog used to live across the South, but its numbers have
collapsed through the years, and most individuals now cluster around a
single pond in Mississippi.
What is habitat?
A major contention in the case is whether the Louisiana property counts as "habitat" under the Endangered Species Act (ESA).
The law allows land protections in unoccupied areas of habitat, but
the landowners argue that the 1500 acres don't qualify because they're
simply not habitat: The frog could not survive there right now. The land
would need modifications to serve as a suitable home.
"This property is not just not optimal. It's not habitat," said Mayer
Brown attorney Timothy Bishop, representing Weyerhaeuser, during oral
arguments in October (Greenwire, 1 October).
Chief Justice John Roberts wrote today that the ESA does not provide a
"baseline definition" of habitat. The opinion directs the 5th Circuit
to consider the issue.
The ruling was unanimous. Justice Brett Kavanaugh, who wasn't seated
in time for 1 October arguments, did not participate. Many court
watchers speculated that the eight justices would issue a narrow
decision to avoid a 4-4 split on broader ideological issues.
Adkins said environmentalists are hopeful the 5th Circuit, which
upheld FWS's designation before, will side with the government again.
But, she noted, the appeals court is known for being conservative,
and the Supreme Court's ruling reopens issues that could result in
unfavorable precedent for endangered species advocates.
Economics
Today's ruling delivered a more decisive victory to landowners on a
secondary issue: whether FWS's economic analysis for a critical habitat
designation is subject to judicial review. The Supreme Court ruled that
it is.
Weyerhaeuser and the other landowners had argued that they should be
able to challenge the agency's cost-benefit analysis supporting its
refusal to exclude the 1500 Louisiana acres from its designation.
Government lawyers countered that the ESA leaves that decision to the
agency's discretion and does not provide a standard for judicial
review.
But the Supreme Court found that such decisions can be reviewed by a
court to determine whether they were arbitrary and capricious, or an
abuse of discretion.
Landowner Edward Poitevent hailed the ruling this morning as a major victory for private property advocates.
"It's astounding to find out the highest court in the land has not
only your back, but the backs of all American landowners," he said in a
statement.
The case now goes to the 5th Circuit for further proceedings.
Reprinted from Greenwire with permission from E&E News.
Copyright 2018. E&E provides essential news for energy and
environment professionals at www.eenews.net
doi:10.1126/science.aaw2117
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