March 9, 2018 | Category: Endangered Species, Land Use, Lawsuit

 

The U.S. Supreme Court agreed to hear Weyerhaeuser Company’s, a timber company, challenge to the U.S. Fish and Wildlife Services’ decision to designate approximately 1,500 acres of private property in Louisiana as “critical habitat” for the endangered dusky gopher frog. The frog does not actually live on the property and the property as it currently exists is not fully suitable habitat. Yet, environmentalists argue that the USFWS made a sound, science-based decision.

The USFWS must designate critical habitat to help conserve endangered or threatened species. The Fifth Circuit Court of Appeals affirmed the USFWS’ designation of the property as “essential” for species recovery in 2016, finding that the Endangered Species Act “requires the service to designate ‘essential’ areas without further defining ‘essential’ to mean ‘habitable.’”

Management-side attorneys argue that the Fifth Circuit’s ruling creates a troubling precedent, and hope that the Supreme Court puts a check on USFWS’ authority. Kerry McGrath, a partner at Hunton & Williams LLP, said that upholding the Fifth Circuit’s decision “could pave the way for designating any part of the United States as critical habitat.” According to McGrath, the big concern is that there “isn’t a limiting principle to show where the line is.”

Patrick Patenteau, an environmental law professor at Vermont Law School, defended the USFWS’ designation process and said that “if the Supreme Court were to issue a really sweeping decision that you can’t be designating unoccupied habitat if there is little current prospect that the species will actually inhabit it, that would be a real blow for using the Endangered Species Act to address climate.”

The Supreme Court must also decide whether the USFWS’ decision to include private land in its overall critical habitat designation can be reviewed on economic grounds. The Fifth Circuit noted in its opinion that the property owners’ potential loss of development value could range from nothing to $33.9 million over twenty years.