Yesterday, November 27, 2018, was a day to celebrate. The Supreme Court ruled in the case of Weyerhaeuser v. U.S. Fish and Wildlife Service (USFWS) that there are limits to how far the federal government can go in using the Endangered Species Act (ESA) to take people’s private property.
The case involved the endangered Dusky Gopher Frog. The USFWS had designated 1,500 acres of forest lands in Louisiana as critical habitat for the frog, although the only two known populations of the frog are at least 70 miles to the east in Mississippi. The land has been owned by the Poitevent family since the end of the Civil War and the impact of its designation could be up to $34 million in lost use and value of the property.
The Court found that the USFWS could not designate private lands as critical habitat unless it could prove that the land was in fact actual habitat. It isn’t, as the USFWS has recognized. The Poitevent family’s land does not have the combination of wetlands, uplands, and forest structure necessary for the frog to live. The Court did not make a definitive ruling as to whether the Poitevent lands are habitat, but instead remanded that issue back to the Fifth Circuit Court to decide.
The ESA grants the government authority to protect the frog and its habitat—whether occupied or unoccupied by the frog. The key issue to the Court, however, was not that it was unoccupied habitat and the frog did not live there, but rather that the frog cannot live there because the land does not have the necessary habitat.
This was an especially significant decision because it was unanimous, 8-0 (Justice Kavanaugh did not participate). For the first time, the Court appears to have grasped the fact that the ESA is increasingly being used not to protect endangered species and their habitat, but as a cost-free form of federal land-use control and federal zoning. This decision is a necessary step in placing side walls on the USFWS’ ability to designate anything anywhere as critical habitat.
Not unexpectedly, the mainstream media suggested that the Court was gutting the Endangered Species Act. Some headlines read: “Supreme Court deals a setback to endangered dusky gopher frog” and “Supreme Court limits habitats protected under Endangered Species Act.” In fact, the decision did not reduce protection for the frog or its habitat. The decision said that the USFWS cannot designate non-habitat as critical habitat. And, as noted, the decision was hardly partisan.
On the contrary, the decision might well make the ESA work better in protecting listed species by requiring the USFWS to stay within its legal authority and concentrate on protecting species and their existing habitat rather than attempting to take non-existing habitat.