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Supreme Court rules in favor of private landowners

Court issues unanimous decision in dusky gopher frog case regarding establishment of critical habitat.

Jacqui Fatka

November 28, 2018

4 Min Read
Supreme Court rules in favor of private landowners

In an 8-0 ruling, the Supreme Court of the U.S. ruled in favor of private property owners’ rights and limiting the federal government’s ability to establish critical habitat designations on land that does not have the protected species.

The ruling specifically sends the case back to the lower courts for further proceedings. It also protects property rights from overreach under the Endangered Species Act. To be designated critical habitat, it should actually be habitat for the species, and economic impacts must be considered, the high court ruled.

The dusky gopher frog once lived throughout coastal Alabama, Louisiana and Mississippi in the longleaf pine forests that used to cover the southeast, but more than 98% of those forests have been removed to make way for urban development, agriculture and timber plantations. The timber plantations consist of fast-growing loblolly pines planted as close together as possible, resulting in a closed-canopy forest inhospitable to the frog. The near-eradication of the frog’s habitat sent the species into severe decline. By 2001, the known wild population of the dusky gopher frog had dwindled to a group of 100 at a single pond in southern Mississippi. That year, the Fish & Wildlife Service (FWS), which administers the Endangered Species Act on behalf of the secretary of the interior, listed the dusky gopher frog as an endangered species.

When the secretary lists a species as endangered, he must also designate the critical habitat of that species.

In his opinion, Chief Justice Roberts wrote, “A critical habitat designation does not directly limit the rights of private landowners. It instead places conditions on the federal government’s authority to effect any physical changes to the designated area, whether through activities of its own or by facilitating private development.”

FWS proposed designating, as part of that critical habitat, a site in St. Tammany Parish, La., which FWS dubbed “Unit 1.” FWS concluded that Unit 1 met the statutory definition of unoccupied critical habitat because its rare, high-quality breeding ponds and distance from existing frog populations made it essential for the species’ conservation. The service then commissioned a report on the probable economic impact of its proposed critical habitat designation.

Unit 1 is owned by petitioner Weyerhaeuser and a group of family landowners. The owners of Unit 1 sued, contending that the closed canopy timber plantation on Unit 1 could not be critical habitat for the dusky gopher frog, which lives in open-canopy forests. The district court upheld the designation.

In 2016, the Obama Administration greatly expanded the authority of FWS to designate critical habitat. Under this expanded authority, FWS began to designate areas that species did not currently inhabit and areas that may at some undetermined point become critical habitat, effectively conferring almost unlimited discretion to the agencies in their designations. 

The landowners also challenged FWS’s decision not to exclude Unit 1 from the frog’s critical habitat, arguing that the service had failed to adequately weigh the benefits of designating Unit 1 against the economic impact, had used an unreasonable methodology for estimating economic impact and had failed to consider several categories of costs. The district court approved FWS’s methodology and declined to consider the challenge to FWS’s decision not to exclude Unit 1.

The Fifth Circuit affirmed, rejecting the suggestion that the “critical habitat” definition contains any habitability requirement and concluding that FWS’s decision not to exclude Unit 1 was committed to agency discretion by law and was, therefore, unreviewable. 

Members of the Congressional Western Caucus welcomed the decision.

"The Supreme Court ruling is a victory for the Constitution and private property rights,” Congressional Western Caucus chairman Paul Gosar (R., Ariz.) said. “In an unanimous 8-0 ruling, the court found the federal government has no authority to lock up private land for species that don’t habitat the land that is being locked up. In doing so, the court wiped out the unconstitutional court of appeals decision and sent the case back to the Fifth Circuit with specific instructions.”

Rep. Andy Biggs (R., Ariz.), chief regulatory reform officer of the caucus, said, “The Fifth Circuit should find a balanced approach towards protecting the environment and local interests.”  

Rep. Rick Crawford (R., Ark.) added, "Like Chief Justice Roberts, I have an ordinary understanding of how adjectives work. I am glad to see the terrible ruling from the Fifth Circuit overruled and reign in agencies run amok. We are a nation of laws, and the Supreme Court’s ruling ushers in a new era of agency accountability and proper wildlife conservation."

Gosar noted, “The Endangered Species Act is 45 years old and has a 3% recovery rate. It is far past time that Congress bring the [act] into the 21st century, and addressing the numerous issues associated with critical habitat designations is something that should be on the table."

About the Author(s)

Jacqui Fatka

Policy editor, Farm Futures

Jacqui Fatka grew up on a diversified livestock and grain farm in southwest Iowa and graduated from Iowa State University with a bachelor’s degree in journalism and mass communications, with a minor in agriculture education, in 2003. She’s been writing for agricultural audiences ever since. In college, she interned with Wallaces Farmer and cultivated her love of ag policy during an internship with the Iowa Pork Producers Association, working in Sen. Chuck Grassley’s Capitol Hill press office. In 2003, she started full time for Farm Progress companies’ state and regional publications as the e-content editor, and became Farm Futures’ policy editor in 2004. A few years later, she began covering grain and biofuels markets for the weekly newspaper Feedstuffs. As the current policy editor for Farm Progress, she covers the ongoing developments in ag policy, trade, regulations and court rulings. Fatka also serves as the interim executive secretary-treasurer for the North American Agricultural Journalists. She lives on a small acreage in central Ohio with her husband and three children.

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