Friday, December 7, 2018

Can An Endangered Species Be Protected In Areas Where It Can’t Survive?


The Endangered Species Act (ESA) has the potential to restrict substantially agricultural activities because many of the protections provided for threatened and endangered species under the ESA extend to individual members of the species when they are on private land.  Many endangered species have some habitat on private land.  Current estimates are that half of the species listed as endangered or threatened have about 80 percent of their habitat on privately owned land.  

When a species is listed as endangered or threatened, the Secretary of the Interior (Secretary) must consider whether to designate critical habitat for the species.  Once a critical habitat designation is made, activities on the designated land are severely restricted.  But how is that designation made, and can a court review the decision to list an area as critical habitat?  Those are important questions for landowners, both rural and otherwise.  Those questions are also the topic of today’s post – critical habitat designations under the ESA and judicial review.

ESA Framework

The ESA establishes a regulatory framework for the protection and recovery of endangered and threatened species of plants, fish and wildlife.  16 U.S.C. § 1531 et seq.  The U.S. Fish and Wildlife Service (USFWS), within the Department of the Interior, is the lead administrative agency for most threatened or endangered species, but the National Marine Fisheries Service (NMFS), within the Department of Commerce administers the ESA for certain endangered or threatened marine or anadromous species. 

Under the ESA, an “endangered species” is a species which is in danger of extinction throughout all or a significant part of its range other than a species determined by the USFWS to constitute a pest whose protection under the provisions of the Act would present an overwhelming and overriding risk to humans.  16 U.S.C. § 1532(6).  A “threatened species” is a species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C. § 1532(20).   The term “species” includes any subspecies of fish or wildlife or plants and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. 16 U.S.C. § 1532(16).

The Listing Process.  Secretary determines when a species is to be listed as either threatened or endangered, and other federal agencies have a duty to conserve listed species by consulting with the FWS when developing their own programs.  See, e.g., Sierra Club v. Glickman, 156 F.3d 606 (5th Cir. 1998).  As of December 6, 2018, 1,661 species in the United States had been listed under the ESA, with 1,275 species listed as endangered and 386 listed as threatened. Presently, the states with the greatest number of species listed as endangered or threatened are: Hawaii, California, Florida, Alabama and Texas.

 An endangered or threatened listing is to be made on the basis of the best available scientific and commercial data without reference to possible economic or other impacts after the USFWS conducts a review of the status of the species. 16 U.S.C. § 1533(b)(1)(A) (2002); 50 C.F.R. 424.11 (20). There is, however, no statutory threshold definition or quantification of the level of data necessary to support a listing decision.  Indeed, the information supporting a listing decision need not be credible; only the “best available.”

The Secretary's decision to list a species as endangered or threatened is based upon the presence of at least one of the following factors; (1) the present or threatened destruction, modification, or curtailment of a species' habitat or range; (2) the over-utilization for commercial, sporting, scientific or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting a species' continued existence.  16 U.S.C. § 1533(a)(1).  The USFWS may decline to list a species upon publishing a written finding either that listing is unwarranted or that listing is warranted, but that the USFWS lacks the resources to proceed immediately with the proposal.  16 U.S.C. § 1533(b)(3)(C)(ii).

Ever since the effective date of the 1982 amendments to the ESA, when a species is listed as endangered or threatened, the Secretary must designate critical habitat for the species. See Center for Biological Diversity v. United States Fish & Wildlife Service, 450 F.3d 930 (9th Cir. 2006).   “Critical habitat” is the specific area within the geographical range occupied by the species at the time of listing that is essential to the conservation of the species.  Critical habitat may also include specific areas outside the geographical area occupied by the species at the time it is listed if the USFWS determines that such areas are essential for conservation of the species.  16 U.S.C. §1532(5)(A).   However, critical habitat need not include the entire geographical range which the species could potentially occupy. 16 U.S.C. § 1532(5).  In making a critical habitat determination, the USFWS must consider economic impacts and other relevant impacts, as well as best scientific data.  See, e.g., New Mexico Cattle Growers Association v. United States Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). The failure to consider the economic and social impacts of a critical habitat designation at the time of the designation can be cause to set aside the designation. Home Builders Association of Northern California, et al. v. United States Fish and Wildlife Service, 268 F. Supp. 2d 1197 (E.D. Cal. 2003). The USFWS may exclude any area from critical habitat if the benefits of the exclusion outweigh the benefits of specifying the area as critical habitat, unless the USFWS determines on the basis of best scientific and commercial data available that the failure to designate an area as critical habitat will result in the extinction of the species. 16 U.S.C. § 1533(b)(2).

Recent Case

Under the facts of Weyerhaeuser Co. v. United States Fish & Wildlife Service, No. 17-71, 2018 U.S. LEXIS 6932 (U.S. Sup. Ct. Nov. 27, 2018), the USFWS, in 2001, listed the dusky gopher frog as an endangered species after determining that its wild population had dwindled to about 100 that were found at a single pond in Mississippi.  It’s habitat had covered coastal areas of Alabama, Louisiana and Mississippi in certain open-canopy pine forests that have since been almost entirely replaced with urban development, agricultural operations and closed-forest timber farming enterprises.  Upon making the designation, the Secretary had to designate the critical habitat for the frog.  It did so in 2010.  Among the areas designated as critical habitat was a 1,544-acre site in Louisiana where the frog species had last been seen in 1965.  While that acreage was largely comprised of closed-canopy timber, it contained five ephemeral ponds and the USFWS believed that the tract met the statutory definition of “unoccupied critical habitat” because it could be a prime breeding ground for the frog.  The USFWS then issued a report on the probable economic impact of designating the tract (and the other areas) as critical habitat. 

The plaintiff owns part of the 1,544-acre tract and leased the balance from a group of landowners that had plans for development of the portion of the tract that they owned.  Those development costs could amount to over $30 million (in timber farming and development) if the USFWS barred all development on the tract.  But, according the USFWS, those potential costs would not be “disproportionate” to the conservation benefits of the designation.  Consequently, the USFWS decided to not exclude the 1,544-acre tract from the frog’s critical habitat. 

The plaintiff and the landowners sued to vacate the designation on the basis that the tract couldn’t be designated as critical habitat because it hadn’t been habitat for the frog since 1965 and couldn’t be habitat without significant modification.  The plaintiff also challenged the decision of the USFWS not to exclude the tract from the frog’s critical habitat on the basis that the USFWS had failed to adequately weigh the benefits of designating the tract against the economic impact of the designation.  The claim was that the USFWS used an unreasonable methodology for estimating economic impact and failed to consider certain categories of costs. 

The trial court upheld the designation on the basis that the tract fit the definition of “unoccupied critical habitat” which only required the USFWS to decide that the tract was essential for the frog’s conservation.  On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed on the basis that that definition of “critical habitat” required a “habitability” requirement.  The appellate court also determined that the decision of the USFWS was not subject to judicial review. 

On further review, the Supreme Court unanimously reversed 8-0 (Justice Kavanaugh did not participate).  Chief Justice Roberts wrote the Court’s opinion, and pointed out that to be “critical habitat,” the designated area must first be “habitat.”  Indeed, the Court pointed out that once a species is designated as endangered, the Secretary must designate the habitat of the species which is then considered to be critical habitat.  16 U.S.C. §1533(a)(3)(A)(i).  That also applied in the context of unoccupied critical habitat that is determined to be essential for conservation of the species – the area must be “habitat.”  Because the appellate court did not interpret the term “habitat” (the appellate court simply concluded that “critical habitat” was not limited to areas that were “habitat”), the Supreme Court vacated the appellate court’s opinion and remanded on this issue. 

The Supreme Court also disagreed with the appellate court’s holding that the determination of the USFWS to not exclude the tract as critical habitat was not subject to judicial review.  The Supreme Court noted that the plaintiff’s claim involving the alleged improper weighing of costs and benefits of the designation as critical habitat was the type of claim that the federal court’s routinely review when determining whether to set aside an agency decision as an abuse of discretion.  Thus, the Supreme Court also vacated this part of the appellate court’s decision and remanded on the issue. 


The case is important to private landowners for a couple of reasons.  First, on remand the appellate court will have to redetermine the designation of the frog’s critical habitat on the basis that it first must actually be habitat for the frog.  There is a “habitability” requirement when the Secretary designates an area as “critical habitat.”  Second, the USFWS doesn’t get a free pass when designating an area as critical habitat.  That designation is subject to judicial review (as are all USFWS decisions to decline to list a species).

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