By Chris Blythe*
This is the story of how a tiny dusky gopher frog created a national constitutional dilemma. A recent judgment on the designation of private land as unoccupied critical habitat may bring large swaths of private land across the Nation to come under the designation and control of the Fish and Wildlife Service (FWS). On the other hand, rejecting the FWS decision would impair its ability to protect endangered species at a time when the Earth is at the brink of massive species collapse.[i] In taking into account a textual analysis of the Endangered Species Act (ESA) and a normative analysis, the Fish and Wildlife Service’s designation should be deemed proper.
The first case of the Supreme Court’s October 2018 term was Weyerhaeuser v. United States Fish and Wildlife Service.[ii] The case relates to a 2001 decision by the Fish and Wildlife Service (FWS) to designate the dusky gopher frog as an endangered species.[iii] The gopher frog’s habitat once covered territory in Louisiana along the Mississippi river as well as Mississippi and Alabama.[iv] Currently, however, the species can only be found on one pond in Mississippi.[v] In 2012, FWS designated areas of land unoccupied by the frog as critical habitat as part of its statutory obligation under the Endangered Species Act (ESA).[vi] FWS found three primary constituent elements (PSE) essential for the frog’s conservation: ephemeral ponds, upland forest, connectivity between breeding pond and upland forest.[vii] One of those areas known as Unit #1, in St. Tammany Parrish, LA, is partially owned and partially leased by the Plaintiff, Weyerhaeuser Company.[viii] They use the land on Unit #1 for their logging operations.[ix] Though Unit #1 lacks the upland forest habitat and connectivity, it does have 5 ephemeral ponds essential for breeding, was previously an historic site for the frogs, and could be restored with reasonable effort.[x] FWS, therefore, determined Unit #1 was essential for the frogs’ conservation. The case poses the following issue: Whether FWS properly determined that Unit #1 is eligible to be designated as “critical habitat” under the Endangered Species Act of 1973?
The arguments likely to be most probative and dispositive are textual ones. The issue hinges on the definitions of “habitat” and “essential” in the ESA and the parties contend different meanings.[xi] Unoccupied critical habitat is defined as “such areas [that] are essential for the conservation of the species” as determined by the Secretary.[xii] Conservation is defined as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.”[xiii] FWS argues that the ephemeral ponds are essential since they are rare and used by the frogs for breeding.[xiv] In other words, FWS has determined designating the land which contains the ponds, is necessary to bring the endangered species to a sustainable level.
Weyerhaeuser offers two different definitions for “habitat” and “essential”. They define habitat as “the physical features that naturally or normally are preferred by the species.”[xv] Weyerhaeuser argued that habitat has an immediacy component to it, and since the frogs cannot immediately survive in Unit #1, it cannot be habitat and therefore not critical habitat.[xvi] For “essential”, Weyerhaeuser defines it as “indispensably necessary”[xvii]; they contend each PCE is indispensably necessary, and therefore an area that lacks any PCE is not essential.[xviii]
Additionally, Weyerhaeuser argues that if the government wants to facilitate the habitation of an endangered species on unoccupied private land that is not currently sustainable, it should use these other ESA powers instead of its designation power. ESA Section 5 authorizes the Secretary “to acquire by purchase, donation, or otherwise, lands waters, or interest therein” “to conserve, fish, wildlife, and plants.” [xix] ESA Section 6 authorizes FWS to “provide financial assistance to any State with a conservation program” and enter “cooperative agreements.”[xx] Finally, ESA allows for a regulated taking with just compensation under extraordinary circumstances.[xxi]
It is important to note that these actions are merely discretionary. Conversely, the Secretary of Interior has a statutory obligation to designate critical habitat.[xxii] Pursuant to the ESA, the Secretary shall “determine whether any species is an endangered species” and concurrently “shall…designate any habitat of such species which is then considered to be critical habitat.”[xxiii]. The Secretary is also obligated to designate “specific areas outside the geographic area occupied by the species” (i.e. unoccupied) as critical habitat when they have determined it essential to the conservation of the species. The statute delegated designation power to the Secretary, who followed the prescribed process for determining Unit #1 is essential using the “best scientific data” and “taking into account consideration of the economic impact”.[xxiv]
If the Court finds a textual analysis to not fully sway a majority, perhaps a normative prudential approach could supplement the analysis. Doubtless the Court is looking beyond just this one case and intuiting the implications of allowing the FWS to designate any private unoccupied land as critical habitat upon reasonable restoration. In such an analysis the Court should weigh two policies: liberty to use one’s property and the need for FWS to fulfill its statutory obligation to protect endangered species. The prophetic warnings by climatologists about climate change’s effect on the world’s fauna and flora should also weigh on the Court’s mind. It is predicted that as much as 50% of the world’s species will be extinct by 2050.[xxv] In acknowledging this existential threat, now might not be the best time to hinder the agency in charge of protecting endangered species.
This forecasted increase in endangered species might explain why Weyerhaeuser chose to litigate this case all the way to the Supreme Court. After all, the company owns more than 12.4 million acres of timberland in the United States; Weyerhaeuser is one of the largest private landowners in the country.[xxvi] With the impending species collapse, allowing this precedent to stand will open Weyerhaeuser to significant liability of large portions of their holdings to fall under critical habitat.[xxvii] As mentioned in oral arguments, the designation can place an encumbrance on Weyerhaeuser’s operations in the future by requiring a permit for projects connected to Federal programs.[xxviii] Whichever way the Court decides this case, it will be implicitly deciding whether endangered species or property rights are more deserving of protection.
*Chris Blythe is a Junior Editor on MJEAL. He can be reached via email at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Chris D. Thomas et al., Extinction Risk from Climate Change, Nature, Jan. 08, 2004, at 145–48.
[ii] October Term 2018, Supreme Court of the United States (Jul. 9, 2018), https://www.supremecourt.gov/oral_arguments/calendars/MonthlyArgumentCalOctober2018.html.
[iii] 66 Fed. Reg. 62,993 (Dec. 4, 2001).
[iv] Garion Liberti & Tayler Woelcke, Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, Legal Info. Inst., https://www.law.cornell.edu/supct/cert/17-71 (last visited Nov. 19, 2018).
[v] Brief for the Federal Respondents, at 2, Weyerhaeuser v. United States Fish and Wildlife Service (2018) (No. 17-71).
[vi] 77 Fed. Reg. 35,118 (June 12, 2012).
[vii] 77 Fed. Reg. 35,118, 35131 (June 12, 2012).
[ix] Brief for Petitioner at 16, Weyerhaeuser v. United States Fish and Wildlife Service (2018) (No. 17-71).
[x] Id. at 10-12.
[xi] Transcript of Oral Argument at 7, 53, Weyerhaeuser v. United States Fish and Wildlife Service (2018) (No. 17-71).
[xii] 16 U.S.C. § 1532(5)(A)(ii) (2012).
[xiii] 16 U.S.C. § 1532(3) (2012).
[xiv] Brief for the Federal Respondents at 37-38, Weyerhaeuser v. United States Fish and Wildlife Service (2018) (No. 17-71).
[xv] Transcript of Oral Argument at 17-18, Weyerhaeuser v. United States Fish and Wildlife Service (2018) (No. 17-71).
[xvi] Transcript of Oral Argument at 63, Weyerhaeuser v. United States Fish and Wildlife Service (2018) (No. 17-71).
[xvii] Brief for Petitioner at 28, Weyerhaeuser v. United States Fish and Wildlife Service (2018) (No. 17-71).
[xviii] Id. at 27-28
[xix] 16 U.S.C. § 1534(a) (2012).
[xx] 16 U.S.C. § 1535(d) (2012).
[xxi] 16 U.S.C. § 1532(5)(A)(ii) (2012).
[xxii] 77 Fed. Reg. 35,118, 35131 (June 12, 2012).
[xxiv] 16 U.S.C. § 15533(b)(2) (2012).
[xxv] See Thomas, supra note 1.
[xxvi] Weyerhaeuser Co Form 10-K Annual Report Filed, Sec. and Exch. Comm’n (Feb. 16, 2018), http://edgar.secdatabase.com/1798/10653518000013/filing-main.htm.
[xxvii] 81 Fed. Reg. 7414, 7435 (Feb. 11, 2016).
[xxviii] Transcript of Oral Argument at 39, 65, Weyerhaeuser v. United States Fish and Wildlife Service (2018) (No. 17-71).