Will the Supreme Court’s Decision in the Case of the Dusky Gopher Frog Forecast the Twilight of the Endangered Species Act?

*Adrian Aldrich

The unassuming dusky gopher frog has become a flashpoint in an ongoing struggle between private landowners advocating for stronger property rights and conservation efforts by the federal government.  Lawrence Hurley, U.S. Top Court Takes Up Property Rights Case Involving Endangered Frog, Reuters (Jan. 22, 2018, 9:45 AM), https://www.reuters.com/article/us-usa-court-frog/u-s-top-court-takes-up-property-rights-case-involving-endangered-frog-idUSKBN1FB1YO.  This year, the Supreme Court accepted a company’s petition for review of its lawsuit against the U.S. Fish and Wildlife Service (FWS).  Id.  The company alleged that the FWS overreached in its efforts to conserve a highly endangered animal.  Amy Howe, Justices Add Frog Case to Merits Docket, SCOTUSblog (Jan. 22, 2018, 3:02 PM), http://www.scotusblog.com/2018/01/justices-add-frog-case-merits-docket/.  The case’s central issue is whether the FWS overreached by designating private land leased by the Weyerhaeuser Company (the petitioner) as “critical habitat,” thereby imposing restrictions on use of the land, even though the species in question does not and —arguably— cannot live on the land.  Petition for a Writ of Certiorari at *i, Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 2017 WL 2992380 (2017) (No. 17-71) [hereinafter Cert. Petition].

I.  Governing Law and Regulations

The Endangered Species Act (Act) was passed to provide a mechanism through which the government could conserve species threatened with extinction and the ecosystems they inhabit.  Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (2012); Brief for the Federal Respondents in Opposition at *2, Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 2017 WL 5479493 (2017) (No. 17-74) [hereinafter Respondents’ Brief].  The Act requires agencies (under the direction of the Secretaries of Interior and Commerce) to designate critical habitat for any threatened species identified and recorded in the Federal Register.  Respondents’ Brief, supra, at *2.  The FWS is responsible for implementation of the Act within the Department of the Interior.  Id. at *3.  Critical habitat is defined under the act as the specific geographic areas occupied by a species at the time of listing which contain “physical or biological features . . . essential to the conservation of the species . . . [that] may require special management considerations or protections.”  Id.  Under the Act, areas unoccupied by the threatened species at the time of listing may also be designated critical habitat if the agency determines those areas are “essential for the conservation of the species” and the existing occupied range is insufficient for that purpose.  Id.  The Act defines conservation as methods necessary to permit a species to recover such that it ceases to be threatened.  Id.; Endangered Species Act of 1973, 16 U.S.C. § 1532(3) (2012).

When considering whether to designate an area as critical habitat, agencies are required to use the “‘best scientific data available’” and take into account any negative impacts (e.g. economic costs or national security) that may incur.  Respondents’ Brief, supra, at *4.  If private land is designated critical habitat, any subsequent federal action involving that site must be made in consultation with the designating agency to ensure the habitat is not damaged.  Id.  Critical habitat designation is reviewable under the Administrative Procedure Act, and may be overturned if the Court finds the decision “arbitrary and capricious” or unlawful.  Id. at *17.

II.  Development of the Conflict Over the Dusky Gopher Frog’s Future

The dusky gopher frog previously inhabited a range including parts of “Alabama, Louisiana, and Mississippi,” but today its population consists of only 100 frogs occupying a small area in Mississippi.  Respondents’ Brief, supra, at *5.  The species is threatened, in part, because it has very specific environmental needs to sustain its reproductive and life cycle.  Id. at *6.  When it declared the frog threatened, the FWS identified three essential features the frog requires, including: “(1) ‘ephemeral’ (i.e., seasonally existing) ponds necessary for the frog’s breeding; (2) ‘[u]pland forested nonbreeding habitat’; and (3) ‘upland connectivity habitat between breeding and nonbreeding habitats.’”  Id.

Seeking an alternate site to establish new populations of the frog, the FWS identified a small privately-owned forested area in Louisiana (Unit 1) which could provide the frog with a “‘breeding habitat that in its totality is not known to be present elsewhere.’”  Id. at *8.  Although Unit 1 possesses the near-unique ephemeral ponds the frog needs to reproduce, the terrestrial area at the site consists of a closed-canopied forest without the frequent fires essential to maintaining the frog’s preferred habitat.  Cert. Petition, supra, at *9.  However, prior to designation, the FWS determined that the site was “restorable with reasonable effort.”  Respondents’ Brief, supra, at *8–9.

The FWS finalized its designation of critical habitat for the frog in 2012, including Unit 1 in its area.  Id. at *9.  The petitioner has a long-term lease providing logging rights on Unit 1 from the property’s owner, who was a party to the original suit.  Faimon A. Roberts III & Sara Pagones, Frog Habitat Case Pending at U.S. Supreme Court Draws Interest from St. Tammany to Utah, New Orleans Advocate (Sept. 10, 2017, 7:00 PM), https://www.theadvocate.com/new_orleans/news/courts/article_237a817e-8f4e-11e7-a1fa-1bd0f9f24bf0.html.  The property owner claims that the designation of Unit 1 as critical habitat will interfere with plans for development on the land, causing as much as $34 million in lost investment and opportunity.  Cert. Petition, supra, at *4.  Both the District Court and the U.S. Court of Appeals for the Fifth Circuit found that the FWS did not overreach when designating Unit 1 as critical habitat for the frog.  Roberts & Pagones, supra.

III.  The Essential Contention between the Parties

In its petition for certiorari, the petitioner asserts that the FWS overreached its authority under the Act by designating a critical habitat “that is neither habitat nor essential to . . . conservation” for the species in question.  Cert. Petition, supra, at *i.  The petitioner’s argument against designation of unoccupied private lands as critical habitat hinges on a textual interpretation of the Act’s definition of critical habitat.  Id. at *5.  Specifically, the argument focuses on the fact that Unit 1 currently possesses only one of the essential features of the frog’s habitat identified by the FWS and further emphasizes that the frog does not actually occupy Unit 1.  Id. at *9.  The petitioner thus asserts Unit 1 is not a “habitat” by any definition and therefore cannot be a critical habitat (occupied or otherwise).  Id.

In its response, the FWS contends that the petitioner misunderstands the meaning of the term “habitat” in the context of the Act, confusing the concept of “critical habitat” defined by the Act with the common understanding of the word.  Respondents’ Brief, supra, at *22.  Further, the agency claims the petitioner is incorrect regarding the need for an animal to currently occupy a site in order for it to constitute habitat.  Id.  The agency defends its designation of Unit 1 because the decision was based on a sound scientific recommendation rather than an arbitrary and capricious choice.  Id. at *6.  Specifically, the agency alleges that the designation was justified because the remaining population of frogs is currently isolated to one small area, placing the species at high risk of extinction from unpredictable events such as drought or disease.  Id.  Thus, the designation of an alternate site, for which Unit 1 is the best candidate, is essential to the frog’s conservation.  Id.

IV.  Conclusion

The outcome of this case could have grave consequences for federal conservation efforts under the Endangered Species Act, depending on which argument a Supreme Court majority finds persuasive.  See Respondents’ Brief, supra, at *25.  For sensitive species like the dusky gopher frog (which became endangered, in part, because of habitat degradation), limiting conservation efforts to inhabited locales may merely delay their extinction.  See id.  Thus, if the petitioner’s interpretation of key terms becomes the rule, the ability of federal regulatory agencies, including the FWS, may be significantly curtailed, and it could become impossible to restore the health of some species beyond the point of endangerment.  See id.

*Adrian Aldrich is a second-year evening student at the University of Baltimore School of Law, where he currently serves as a staff editor for Law Review.


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