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Environmental Law Update: The Dusky Gopher Frog Goes to Washington

Beaux Jones -  Posted on by Baldwin, Haspel, Burke & Mayer

On Monday, January 22, 2018, the Supreme Court of the United States (“SCOTUS”) announced that it would hear a challenge to the U.S. Fifth Circuit’s decision upholding the U.S. Fish and Wildlife Service’s (“FWS”) critical-habitat designation on 1,500 acres of private land in St. Tammany Parish as a potential future habitat for the endangered Dusky Gopher Frog (Rana sevosa).

In Weyerhaeuser Company v. United States Fish & Wildlife Serv., a group of private landowners, the Pacific Legal Foundation and Weyerhaeuser are seeking review of the 2016 Fifth Circuit Decision in Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 827 F. 3d 452 (5th Cir. June 30, 2016), which found that even though the amphibians are not known to currently live in Louisiana, the FWS’ designation was not arbitrary and capricious and was within the limits of its statutory authority to make the critical-habitat designation. Read the entire 2016 decision here.

After the 2011 FWS designation, private landowners brought suit arguing that the FWS action significantly decreased the value of their property because it limited the potential for future development. Environmental groups and the FWS countered that the property in Louisiana is essential for the conservation of the species because it is the highest quality breeding habitat anywhere in the frog’s historic range, which stretches through Alabama, Mississippi and Louisiana.

Although the case raises an abundance of fascinating environmental and administrative law topics, the core question, as styled by the Petitioners, to be reviewed by the SCOTUS is whether the Endangered Species Act (“ESA”) contains a “habitability requirement.” Said another way, can the ESA be applied to property that is not currently habitat for an endangered species? The Fifth Circuit held that “[t]here is no habitability requirement in the text of the ESA or the implementing regulations.” Markle at 468. The Petitioners argue instead that “[t]he ‘irreducible minimum’ of critical habitat ‘is that it be habitat.’” Read the Petition for writ of certiorari here.

The frog case is set to be heard by the SCOTUS during the October Term of 2018 and will bring a relatively obscure amphibian that spends a majority of its life underground into the forefront of the national conversation, balancing the need for conservation with the private rights of property ownership.



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