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Supreme Court to review uninhabitable ‘critical habitat’ for species

Can areas that are uninhabitable by an endangered species still be declared its “critical habitat” under the Endangered Species Act? The U.S. Supreme Court has agreed to decide this question.
Mateusz Perkowski

Capital Press

Published on January 26, 2018 8:25AM

The Dusky Gopher frog. The U.S. Supreme Court will review a case in which 1,500 acres in Louisiana were designated “critical habitat” for the frog even though it doesn’t live there.

U.S. Fish and Wildlife Service

The Dusky Gopher frog. The U.S. Supreme Court will review a case in which 1,500 acres in Louisiana were designated “critical habitat” for the frog even though it doesn’t live there.

Roughly 1,500 acres of Louisiana forestland are not only unoccupied by the dusky gopher frog, but current conditions render them uninhabitable for the endangered species.

Even so, the U.S. Fish and Wildlife Service in 2012 included those 1,500 acres in the frog’s protected “critical habitat,” since the area could eventually be restored to sustain the amphibian.

The Weyerhaeuser timber company and other landowners have been fighting that designation in federal court, as the associated restrictions could block development of their property.

At their urging, the U.S. Supreme Court has agreed to decide whether private property can be classified as “critical habitat” under the Endangered Species Act despite lacking both the protected species and the environmental characteristics needed to support it.

While the lawsuit before the nation’s highest court concerns Louisiana woodland, the case has implications anywhere that “critical habitat” could be declared based on future modifications, according to agriculture and property rights advocates.

“I guess there’s really no limit on where it might apply,” said Ellen Steen, attorney for the American Farm Bureau Federation. “It’s not capable of serving as habitat in its current state.”

Under the Fish and Wildlife Service’s “bizarre thinking,” the federal government could limit activities on private property even though it cannot be inhabited by a protected species without significant human intervention, Steen said.

“It’s not logical to our way of thinking and we’re glad the Supreme Court is taking a look at the issue,” she said.

In this case, Weyerhaeuser and the other landowners fear they’ll be unable to get federal permits to fill wetlands, potentially curtailing or prohibiting residential and commercial development at a loss of $20 million to $34 million in value.

However, such “critical habitat” designations could also require Endangered Species Act “consultation” on farms and ranches subject to federal actions, including financial assistance from USDA and loan guarantees from the Small Business Administration, according to the Farm Bureau.

Critical habitat may also affect grazing on public rangelands owned by the U.S. Bureau of Land Management and Forest Service, as well as irrigation diversions and water conveyances administered by the federal government.

When a property comes under the purview of the Endangered Species Act, it can have profound economic consequences because there are so few limits on the statute’s authority, said William Perry Pendley, president of the Mountain State Legal Foundation, which advocates property rights.

“It doesn’t matter how much it costs to save a species, you cannot let it go out of existence,” Pendley said.

By extending “critical habitat” to unoccupied areas that aren’t suitable for a species, the government is basically using private property for an experiment, he said. “It’s obvious that’s going too far and that’s why the court took the case.”

The Center for Biological Diversity, which intervened in the litigation to defend the critical habitat designation, is surprised by the Supreme Court’s decision to review the case.

It’s been well-established the Endangered Species Act allows “critical habitat” to be declared even in areas unoccupied by a protected species, said John Buse, attorney for the environmental group.

The designation only affects federal permits, which means landowners can still harvest timber as they have in the past, he said. “They can continue doing what they are doing.”

The impacts of the critical habitat designation have been overblown, as have the potential repercussions of the case, Buse said.

Despite the controversy, the Fish and Wildlife Service is already reluctant to designate unoccupied areas as “critical habitat,” he said.

The practice will likely remain infrequent regardless of the lawsuit’s outcome, Buse said. “The effects here are not going to be super far-reaching.”

The Center for Biological Diversity and the U.S. Fish and Wildlife Service argued against the Supreme Court reviewing the case.

Scientific experts recommended the frog’s “critical habitat” be expanded beyond its current range in Mississippi, as it currently occupies areas that are fragmented and susceptible to drought.

The 1,500 acres in Louisiana contain five rare ephemeral ponds that could serve as breeding habitat for the frog, the agency said. The isolated ponds are seasonal and don’t contain fish that could prey on the species.

Although the surrounding upland forest is of “poor quality” for the frog’s survival, it’s “restorable with reasonable effort” and the frogs could be eventually be transplanted to the five ponds to prevent extinction, the agency said.


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