On November 27th the United States Supreme Court unanimously decided a case brought up by the Fifth Circuit in Louisiana popularly known as the “Dusky Gopher Frog Case,” the case dealt with critical habitat designation on private property for the dusky gopher frog. The Court’s opinion can be summed up as a major win for private property rights in the face of extreme government overreach by the Fish and Wildlife Service due to the absurd decision reached by the Fifth Circuit.
Originally, the Fifth Circuit ruled that the Fish and Wildlife Service could designate critical habitat on property that was not even habitable to the endangered species. Further, the Fifth Circuit ruled that a court could not even review a landowner’s challenge to the decision despite the decision to list the property would potentially cost the landowner approximately $34 million in lost development opportunity. Ultimately, the Supreme Court unanimously sided with property rights and ruled that critical habitat actually has to be “habitat” (why did it take intervention of the Supreme Court to decide that?), and a property owner can at least challenge an absurd conclusion that at $34 million harm to a landowner does not outweigh the benefit of creating critical habitat that an endangered species cannot even live on.
The frog in controversy is popularly known as the “dusky gopher frog,” “dusky,” because of its dark coloring, and “gopher” because it lives underground. The dusky gopher frog is about three inches long, with a large head, a plump body, and short legs. It is famous for covering its eyes with its front legs when it feels threatened, peaking out of its legs periodically until the danger passes. The Fish and Wildlife Service listed the frog as an endangered species in 2001, but did not designate critical habitat (as is required by law) until 2012.
In 2012 the Fish and Wildlife Service designated several thousand acres of critical habitat for these frogs on all private land in the states of Mississippi and Louisiana. Although there was no contention as to the designation of the acreage in Mississippi, the critical habitat designation for the acreage in Louisiana was disturbing because dusky frog has not lived on the Louisiana property in decades (if ever). Further, the acreage as it currently stands is completely uninhabitable by the frog. In fact, the proposed critical habitat in Louisiana only has one of the three required characteristics for habitability. Thus, despite the fact that the habitat would have to be physically altered in order to successfully introduce dusky gopher frogs in the area, the US Fish and Wildlife Service designated the area as critical habitat claiming that the one characteristic that could make the area habitable was essential to the frog’s survival. The landowners in turn requested that the property be excluded from critical habitat designation because the economic harm vastly outweighed the benefit the critical habitat would create for the frogs. The Fish and Wildlife Service denied their request and chose to designate the area anyway. This decision came despite the fact that the designation of critical habitat in Louisiana could result in economic impacts of up to $34 million stemming from lost development opportunities.
The disturbing implications of the Fish and Wildlife Service’s designating critical habitat on land currently uninhabitable by the endangered species is that it opened the door for the Fish and Wildlife Service to do the same thing across the country. For example, if the monarch butterfly ever became an endangered species, the Fish and Wildlife Service could hypothetically designate any and every pasture and every backyard in America as critical habitat because it is capable of growing milkweed, one of the essential components to the monarch butterfly’s habitat. In turn, this would open the door for the Fish and Wildlife Service to coerce landowners to modify their property to become habitable for an endangered species that does not currently live on their property.
Until this Supreme Court opinion, the case had been ruled in the Fish and Wildlife Service’s favor from the lower courts. Each of those rulings concluded that the critical habitat designation was proper and that there was no habitability requirement for designation of critical habitat. This opened the door to allowing the Fish and Wildlife Service to list any property as critical habitat for a future endangered because there was no need to prove that an endangered species actually could survive on that property. Taken to the extreme, this could allow the Fish and Wildlife Service to list property in Colorado or Wyoming as critical habitat for polar bears or Siberian tigers because Colorado and Wyoming have cold climates. The lower courts also concluded that they could not review whether the Fish and Wildlife Service failure to exclude the area from critical habitat designation for economic reasons (as is required by law) was proper. This was perhaps even more disturbing than even the habitability issue because it took away all oversight and allowed the Fish and Wildlife Service to make absurd decisions, like not excluding critical habitat in an area that could have millions of dollars of economic impact with little to no benefit to the endangered species.
Upon taking up the case from the Fifth Circuit, the Supreme Court rejected the Fifth Circuit’s findings on two major issues.
First, the Supreme Court ruled that critical habitat designations under the Endangered Species Act were limited to only those areas that qualified as “habitat.” The Court in turn sent the case back to the Fifth Circuit to determine the definition of “habitat.”
Second, the Supreme Court ruled that the decision not to exclude an area from critical habitat for economic reasons is reviewable by the courts. The Court ultimately reasoned that although the term “may” is used in the statute lends to agency discretion, however the discretion lent to the agency does not hide the decision from being reviewed by a court. Because the Fifth Circuit failed to even look at the Fish and Wildlife’s decision not to exclude the property from being listed as critical habitat, the Supreme Court sent the case back to the Fifth Circuit to consider whether the cost to the landowners outweighs the benefit of the critical habitat to the species.
In sum, there were two major victories that came out of this decision. First, the Supreme Court acknowledged that a critical habitat designation must include property that is in fact “habitat.” Second, the Fish and Wildlife Service’s decision not to exclude critical habitat for economic reasons is reviewable by courts. Despite these two rulings, there are several major questions that are raised by this opinion the Fifth Circuit will have to address and might eventually go back up to the Supreme Court.
One major question is, what is the definition of “habitat?” The Fish and Wildlife’s position is that “habitat” can include areas that would require some degree of modification to support a sustainable population of an endangered species (for example, requiring a change to the forest habitat surrounding the ephemeral ponds the frog could use). In turn, the property owners argue that “habitat” can only include those areas where the endangered species could currently survive.
Another major question presented is whether land an endangered species cannot currently survive can be included as land “essential for the conservation for the species?” This question is important because land not currently occupied by an endangered species can only be designated as critical habitat when the Secretary of the Fish and Wildlife Service determines that the land is “essential for the conservation of the species.” So, hypothetically, if the Fifth Circuit rules that an area that the species cannot live on is still considered “habitat,” but not “essential for the conservation of the species,” it would in turn ultimately result in the same victory for landowner property rights, because the Fish and Wildlife Service could not be designated as critical habitat in places that the species could not currently survive on.
Finally, when does the Fish and Wildlife Service have to exclude critical habitat for economic reasons? If the Fifth Circuit reviews the economic determination of the Fish and Wildlife Service, and ultimately gives little or no weight to the contrary evidence against the Fish and Wildlife Service’s economic reasons, then the ability for landowners to challenge a decision not to exclude critical habitat would ultimately mean very little.
In the end the tale of the Dusky Gopher Frog Case is both disturbing, and relieving at the same time. Disturbing, because two lower courts were willing to give a government agency the power to obliterate a landowner’s property value with little to no public benefit attached to the violation of rights without any oversight from the judiciary. Relieving, because the Supreme Court unanimously sided with property rights and ruled that a property owner can at least challenge an absurd conclusion that a $34 million harm to a landowner does not outweigh the benefit of creating critical habitat that the dusky gopher frog cannot even live on. Ultimately however, this goes back to a deep-rooted problem within our current government system in which Congress and the courts have given too much power to unelected federal agencies. So today we revel in a victory for property rights, but we realize that the fight is far from over.
Conner is an associate attorney at the Falen Law Offices (formerly known as Budd-Falen Law Offices), a property rights advocacy law firm based in Cheyenne, Wyoming. The firm specializes in dealing with property rights and public lands issues on behalf of landowners for various circumstances, including the Endangered Species Act, grazing rights, local government advocacy, oil and gas, water law, and representing landowners in cases where the other side has eminent domain authority. Due to the importance of this case in protecting private property rights, Falen Law Offices was closely involved in the Dusky Gopher Frog case and wrote an amicus brief for over a half dozen property rights advocacy groups to the United States Supreme Court. Please feel free to call or email Conner if you have any questions regarding this letter; email@example.com 307-632-5105.
 Those groups are the Wyoming Stock Growers Association, Wyoming Association of Conservation Districts, Wyoming Farm Bureau Federation, Wyoming Wool Growers Association, the New Mexico Cattle Growers Association, New Mexico Wool Growers, Inc., and Progressive Pathways, LLC.
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