The endangered dusky gopher frog, a darkly colored, moderately sized frog with warts covering its back and dusky spots on its belly. Photo: U.S. Fish and Wildlife Service/Reuters
Amid all the hand-wringing about a polarized Supreme Court, note Tuesday’s unanimous decision for regulatory sanity. The case concerned whether a frog’s “critical habitat” can include land where the frog doesn’t live and can’t survive.
Weyerhaeuser v. U.S. Fish and Wildlife involves more than 1,500 acres in Louisiana that the government declared “critical habitat” for the dusky gopher frog, which is protected under the Endangered Species Act. Two problems: The critter hasn’t been seen in those parts for about five decades, and it can’t survive on the land without clearing forest canopy.
The timber company that operates on the land sued on the sensible grounds that the place can’t be critical habitat if the creature would die on arrival. The law allows Fish and Wildlife to designate certain unoccupied areas as critical habit but only if they’re essential to the conservation of the species. The designation threatens development on the land and could cost the owners $34 million by the government’s estimates.
The Fifth Circuit Court of Appeals ruled for the government in a decision with no limiting principle—by the circuit’s logic, a desert could be critical habitat for a fish, as more than a dozen state attorneys general pointed out in an amicus brief to the Supreme Court.
The Supremes ruled for the land owners 8-0. (Justice Brett Kavanaugh wasn’t seated at the time of oral argument.) Chief Justice John Roberts wrote for the Court that “according to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’” The case is sent back to the circuit court to consider if the land is habitat, among other questions.
The Justices also ruled that the critical habitat designation is subject to judicial review. One mystery is why the Trump Justice Department defended such an expansive interpretation of the law. Maybe the next Attorney General can take the career bureaucracy off autopilot.
The Justices could revisit the case if the Fifth Circuit muffs the Court’s questions. Meantime, the dusky gopher frog would have a better chance of surviving in more places if the Endangered Species Act gave private land owners an incentive to protect wildlife rather than subjecting them to years of federal legal harassment.
Appeared in the November 28, 2018, print edition.
A.1) Do you think this decision will hinder endangered species protections? Why or why not?
B) Now that you’ve read Petersen’s book on the Endangered Species Act, Acting for Endangered Species: The Statutory Ark, you can address the following questions:
History of Endangered Species Protection
- Prior to the ESA, what kinds of species were protected and why?
- Why was the ESA enacted in 1973 and why, for such a controversial statute, was it enacted so easily?
Snail Darter Controversy
- Why did the FWS refuse to list some species after the snail darter controversy?
- What role did private citizens and NGOs play in the snail darter controversy?
Spotted Owl Controversy
- Why was the tiny NGO “Greenworld” the initiator of the spotted owl listing issue, instead of a larger, better-established group?
- What was the legal issue in Babbitt v. Sweet Home and what was the Court’s holding?
- Why is this book subtitled the “statutory ark”?