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The Supreme Court Is Considering Critical Habitat (And It Could Impact Your Project)

by Transect Team, on Oct 12, 2018

We recently wrote about proposed modifications to the Endangered Species Act (ESA) that could change how agencies evaluate the threat levels for Endangered and Threatened Species. While the U.S. Fish and Wildlife Service (“USFWS” or “The Service”) is busy reviewing the reported 65,000 comments on the three proposed rules, the Supreme Court is simultaneously reviewing a case about critical habitat, the outcome of which could significantly change how the ESA is interpreted as well.

The case before the court is Weyerhaeuser v. USFWS, and it addresses whether the government can designate “critical habitat” to protect an endangered species if the species is no longer found in that area. The Supreme Court will consider the circumstances in which the Service can expand a species’ critical habitat and also whether the Service must consider financial consequences if private lands are necessary to prevent the extinction of a species.

The Law

Congress crafted the ESA to include the conservation of ecosystems upon which threatened and endangered species depend. Under the ESA, the Secretary of the Interior is required to designate any habitat that is considered essential to the survival of a threatened or endangered species as “critical habitat.” Areas designated as “critical habitat” cannot be developed in any way that destroys or adversely modifies that habitat.

The Case

Weyerhaeuser v. USFWS concerns the endangered dusky gopher frog, which currently has a population of less than 150 adults living in Mississippi. However, the frogs used to reside in Louisiana on a parcel of land now called “Unit 1” and owned by the Weyerhaeuser Company. This 1,500+ acre property contains a string of ephemeral (seasonal) ponds that were historic breeding sites for the frogs. Ephemeral ponds are essential to dusky gopher frog survival because they dry out between rainy seasons, making it impossible for predator fish to eat them.

Though the frogs were no longer residing there (they were last seen in the area in the 1960s), the USFWS determined that Weyerhaeuser property could support the translocation of the frogs if the surrounding uplands were restored. With a species’ existence at stake and a plan to conserve them, the Service determined that the area was “critical habitat” and that it did not need to consider the economic impacts on the land owner before making the determination.

The Fifth Circuit Court of Appeals upheld a decision finding that the Service’s determination of the area as critical habitat was subject to a “presumption of validity,” that the plaintiff had not overcome, and that there was no requirement to consider the financial implications to the landowner in these circumstances.

Two Big Legal Questions

The case now presents two legal questions for the Supreme Court to rule on. The first is if the USFWS can designate critical habitat if a species is not currently living in that habitat. The Service determined population expansion outside of Mississippi was necessary to the survival of the species. Under the standard used by the Fifth Circuit, the Service’s decision will be upheld if its reasons and policy choices satisfy minimum standards of rationality.

The second legal issue relates to the Service’s discretion in determining “critical habitat”.  The Act requires that “critical habitat” be designated when a species is listed as threatened or endangered, and the habitat be defined by using the best scientific data available, after taking into consideration the economic impact, the impact on national security and any other relevant impact.  Then, if the benefits of exclusion outweigh the benefits of including such an area as critical habitat, the area may be excluded.  The petitioners claim that the Agency abused its discretion by improperly ignoring the economic impacts. However, the Agency claims that it had no discretion once it determined that the exclusion of the habitat in question would result in the extinction of the species. The pending case challenges the scope of the Agency’s discretion making a critical habitat determination.

Timing and Your Next Project

Typically, the United States Supreme Court issues its decision about 3 months after oral argument, although major cases are often not announced until the end of the term in May or June.  It remains to be seen how the Supreme Court will approach these important questions.

Critical habitat is everywhere, and more is proposed each week. But it doesn’t have to be overwhelming to keep up with it all.  At Transect, we track existing and proposed critical habitat, and notify you if your project crosses either – giving you peace of mind and a plan. Sign up today to start monitoring your projects.

Topics:Endangered Species Act