The Endangered Species Act recognizes that the biggest challenge facing endangered and
threatened species is the loss of habitat, and so one of the ways that it goes about
trying to solve the problem of species extinction is to identify and protect a critical habitat
for those species.
The issue in this case is whether it makes sense and whether it's lawful for the U.S.
Fish and Wildlife Service to designate land as critical habitat and, therefore, impose
pretty significant regulatory burdens if the land isn't currently habitat for the species
and in its current condition can't contribute to the species recovery.
The U.S. Fish and Wildlife Service is an unfortunate spot.
The amount of habitat that exists for this frog is not enough to provide for its recovery.
Everyone recognizes that the only way for the dusky gopher frog to recover is for new
habitat to be created that it can grow into, and this case arose because the service was
trying to figure out how to do that and chose to designate land as critical habitat even
though in its current condition it can't be used as habitat.
And the critical habitat designation is an odd federal process that doesn't immediately
trigger any additional regulatory requirements, but it can have a significant impact on property
owners if their use of their property down the road requires any sort of federal funding
or federal permit.
So, for example, in the Weyerhaeuser case, the concern is that, once the timber harvesting
plan is done and the property owner wants to build housing or do some other change to
the use of the property, other regulatory permit requirements may trigger a process
under the Endangered Species Act that can be extremely costly and time consuming and
could perhaps, result in the denial of any use of the property whatsoever.
The service estimated what the impact on the property owners would be under these scenarios
and found that it could be high as a $34 million loss to the property owners.
The species was listed as endangered in the early 2000s.
The service initially posed to only designate occupied habitat as critical habitat but a
peer review recommended expanding and looking at other areas where the species could grow into.
So in the late 2000s, the service proposed to designate this area of Louisiana also as
critical habitat.
That was immediately challenged by the property owners.
This land has changed substantially from what it was as the historic habitat for the species.
People have not allowed wildfires to burn through the area like they did historically.
There's been increased development, both urban and suburban, and most of the forest that
the frog needs for its habitat is no longer there.
The longleaf pine has been replaced with other species that grow faster and are better for
the timber harvesting industry.
So if you were to put frogs there now, no population could be established without substantially
changing the land.
Weyerhaeuser's best argument is that when Congress authorized the designation of critical
habitat, it used the word habitat, and Weyerhaeuser says it did so for a reason.
It didn't want to give an agency carte blanche to regulate all land in the country.
It was focused on a particular problem.
It wanted to provide for the protection of the areas where species actually lives or
could live.
And when you go beyond that and allow the designation of areas that are currently not
habitable you've created an open-ended power that enjoys no support in the text of the
statute.
The service's best argument is that it's not about broad principles and broad statutory
interpretation questions.
It's how do we protect and recover the dusky gopher frog when we have this problem of not
enough habitat in existence.
They're focusing on the values and the purposes underlying the statute, that the reason why
Congress enacted the Endangered Species Act was to protect and recover species.
And the service says that the only way to do that for this species is to protect land
like this, which even though it's not currently habitat, has characteristics that makes it
possible to restore it and create habitat there.
Every survey shows that 99% of Americans support the underlying purposes of the Endangered
Species Act.
And this is a critical question of how the statute works and the way we pursue species
protection and recovery.