To: Eric Huber — Managing Attorney, Sierra Club
From: Tyler Ruth — Legal Assistant, Sierra Club
Re: Critical Habitat Designation for Dusky Gopher Frog Under Endangered Species Act
Date: 27 October 2018
Question Presented
The legal question is whether the U.S. Fish and Wildlife Service’s (FWS) designation of critical habitat for the dusky gopher frog is a valid exercise of its authority under the Endangered Species Act (ESA).
Brief Answer
The critical habitat designation for the dusky gopher frog reasonably falls within the FWS’ authority under the ESA. The FWS chose the site of Unit 1 with the guidance of experts specializing in species conservation. These experts found ponds in the unit which could significantly facilitate dusky gopher frog breeding, which were not located anywhere else. The scientific background of the FWS, in addition to their thorough analysis of potential habitats, and the courts’ tendency to side with agencies under Chevron, would lead the court to find FWS’ critical habitat designation valid. Furthermore, Congressional Commerce Clause powers in this case are not an overreach, as there is a history of courts endorsing the belief that, in the end, the extinction of a species will have impacts on interstate commerce. The Appellate Court in National Association of Home Builders v Babbitt stated that the ESA in general can be interpreted as “substantially affecting interstate commerce” since “the provision prevents the destruction of biodiversity and thereby protects current and future interstate commerce that relies upon it.” Lastly, the landowners argue that the FWS violated the National Environmental Protection Act (NEPA) by not creating an environmental impact statement. But this is a moot point, as the landowners do not fall within NEPA zone of interests as NEPA and ESA are intended to protect the environment.
Background
The Rana sevosa—dusky gopher frog—has historically occupied lands in Alabama, Louisiana, and Mississippi. Currently, however, their only known habitats are found in Mississippi. They have not been found to occupy Alabama or Louisiana for decades. The frogs spend “most of their lives underground in open-canopied pine forests” and “migrate to isolated, ephemeral ponds to breed.” Ephemeral ponds, by name, only exist during certain times of the year, and are quite rare to find. These ponds dry out in other times of the year and make it impossible for predators of the dusky gopher frog to survive.
The dusky gopher frog was listed as an endangered species by the U.S. Fish and Wildlife Service in December of 2001. At the time of that designation, it was estimated only 100 dusky gopher frogs existed. The ESA necessitates FWS to designate critical habitat areas for endangered species. FWS designated 1,957 acres of land in Mississippi as critical habitat for the dusky gopher frog in 2010. The FWS then consulted with conservation scientists, who found that the original designated acreage would be insufficient to protect the dusky gopher frog from extinction. The original acreage did not contain sufficient amounts of ephemeral ponds, needed by the species to breed, nor did it have upland forested habitat and connected corridors that would allow them to move between their breeding and burrowed nonbreeding habitats, so the habitat was expanded to 6,477 acres in four counties of Mississippi and one parish of Louisiana.
The habitat designated in Unit 1, located in Louisiana, contains five ephemeral ponds that are “intact and of remarkable quality.” The habitat designated in Unit 1 is a historic breeding site for the dusky gopher frog. The ponds are also close to each other, allowing for adult frogs to move between them and promote genetic diversity, and thus long-term population growth viability.
The plaintiffs Markle Interests, L.L.C., P&F Lumber Company 2000, L.L.C., PF Monroe Properties, L.L.C, and Weyerhaeuser Company own all of the land contained in the designated Unit 1. The plaintiffs use of the land range from lumber operations, residential development, and commercial development. Each plaintiff sued for declaratory judgement and an injunction on the critical habitat designation against the FWS, the director of FWS, the Department of the Interior, and the Secretary of the Interior. The collective landowners challenged the FWS in three ways: (1) the designation violates the ESA, (2) the designation oversteps FWS’ boundaries set by the Commerce Clause, and (3) the designation violates NEPA.
The Center for Biological Diversity and the Gulf Restoration Network are defendants in the case, in addition to the FWS.
Applicable Statues or Regulations
Sections 3 and 4 of the ESA
SEC. 3.
(5)(A) The term “critical habitat” for a threatened or endangered species means— (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. (B) Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph. (C) Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.
SEC. 4.
(b) BASIS FOR DETERMINATIONS
(2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.
Discussion
The ESA was created by Congress with the specific goal to “provide a means whereby the ecosystem upon which endangered species . . . depend may be conserved” and to then “provide a program for the conservation of such endangered species.” ‘Conservation’ is broadly defined by the statute as it includes “the use of all methods and procedures which are necessary to bring any endangered species . . . to the point at which the measures provided are no longer necessary.” In more general terms, this means the FWS is permitted to do whatever necessary in order to allow the dusky gopher frog to survive, and be a resilient population in the long term. This is best demonstrated in the opinion from Sierra Club v U.S. Fish & Wildlife Serv.: “the objective of the ESA is to enable species not merely to survive, but to recover from their endangered or threatened status.”
In order to meet this goal, the Congress and the ESA enlisted the FWS to identify and list endangered species. The listing of a species as endangered will then permit the FWS to perform their statutory duty and designate critical habitat “to the maximum extent prudent and determinable.”
Before analyzing the validity of the FWS’ designation, we must first determine whether the plaintiffs have standing in this case. The plaintiffs assert that the designation will result in lost property value. Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and ‘Controversies.’ In order to satisfy “the ‘case’ or ‘controversy’ requirement of Article III, which is the ‘irreducible constitutional minimum’ of standing, a plaintiff must . . . demonstrate that he has suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision” and the injury must be concrete and particularized. The plaintiffs’ assertion in this case is “concrete and particularized” and also actual and imminent. Their assertion is itself backed up by the FWS themselves in their Final Economic Analysis which states “public attitudes about the limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are actually imposed.” This means that property designated “may have a lower market value than identical property.” There is no question of causation or redressability in this case. The FWS themselves traced the lower property values back to their own critical habitat designation, and this injury could be redressed by an injunction or damages. The plaintiffs have Article III standing to challenge the critical habitat designation.
The ESA clearly states two different kinds of critical habitats, and these are areas occupied by the endangered species at the time of listing and areas not occupied by the species at the time of listing. In order to list an already occupied geographical region as a critical habitat, the FWS must demonstrate that the region has “those physical or biological features . . . essential to the conservation of the species.” To designate an unoccupied region, the FWS must show that the designated regions are “essential for the conservation of the species.” The ESA did not define ‘essential’ so it is reasonable to assume that the definition of ‘essential’ was left for the FWS to make, as it is ambiguous. The ESA also requires that the FWS designates critical habitat “on the basis of the best scientific data available.” The FWS consulted with scientific experts and found that the designation of Unit 1 was very promising in its ability to harbor the dusky gopher frog, and “when examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential”. The FWS adopted the experts’ conclusion as they found that designating only the occupied land was “not sufficient to conserve the species.” The FWS enumerated by saying “recovery of the dusky gopher frog will not be possible without the establishment of additional breeding populations of the species” and that additional habitats outside of Mississippi are needed to make the dusky gopher frog resilient to local catastrophes. The FWS’ scientific analysis serves as a strong argument against the plaintiff’s challenge that the designated critical habitat in Unit 1 was arbitrary and capricious.
The plaintiffs also argue that since Unit 1 is currently unoccupied and uninhabitable for the dusky gopher frog, it is an unreasonable interpretation by the FWS to describe Unit 1 as “essential.” But the law itself does not define the word “essential” as “habitable.” This is the plaintiffs conflating the two words, when it is not their discretion to do so. After the FWS’ scientific analyses, it is reasonable to assume that their designation of Unit 1 as essential is necessary “for the conservation of such [an] endangered species.” The plaintiffs have not proved the findings as false nor have they shown that the FWS’ interpretation of “essential” is unreasonable.
The plaintiffs argue that the FWS have exceeded the constitutional powers given to them by the ESA under the Commerce Clause. The plaintiffs have said themselves that the critical-habitat designation powers of the ESA are “within the legitimate powers of Congress” so we must only examine if the habitat designation is economic in nature, and related to interstate commerce. Under the opinion from Lopez, intrastate activity may be regulated if it is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Under GDF Realty, “ESA’s protection of endangered species is economic in nature” and “ESA is an economic regulatory scheme.” The purpose of the ESA is to protect endangered species “as a consequence of economic growth and development untampered by adequate concern and conservation.” Under GDF Realty, it is understood that there exists an “interdependence of species” and if one species were to go extinct, then there would undoubtedly be interstate economic consequences.
Lastly the plaintiffs argue that the FWS violated NEPA by not creating an EIS before designating Unit 1 as critical habitat. But an EIS “is not required for non-major action or a major action which does not have significant impact on the environment. The designation of critical habitat itself does not constitute a change to the physical environment, and thus an EIS was not needed. Furthermore, the plaintiffs allege that the injuries from the designated critical habitat would purely be economic. But “NEPA was not designed to protect contractors’ rights: it was designed to protect the environment.” NEPA is to protect against environmental injury, and the critical habitat designation would do the exact opposite of environmental injury, and actually help to recover lost habitat for an endangered species. The plaintiffs would need to have, in addition to Article III standing, fallen within the zones of interests that are protected under NEPA. They do not, as many circuit courts have affirmed that “a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA.” The plaintiffs’ assert only lost property value and “NEPA was not designed to protect contractors’ rights: it was designed to protect the environment.”
Conclusion
The plaintiffs in this case fail to challenge the FWS adequately. They focus on the wording of the ESA too much, specifically the definition of “essential” when it is clear that the definition of “essential” is up for interpretation, and under Chevron, the power to define “essential” is up to the FWS. “Essential” does not mean “habitable” as the plaintiffs would like to believe. The scientific background of the critical habitat designation also strengthens the FWS’ habitat designation, making it much harder for the court to find that the designation has no basis, and more likely for Chevron deferential. The plaintiffs’ Commerce Clause challenge was similar to the argument in Gibbs v Babbitt, and time after time it has been shown that any semblance of interstate commerce in an ESA case will result in the ESA winning, which should be the way with this case. Finally, the NEPA challenge was pedantic at best, as there is no basis for a private party suing under NEPA solely for economic injuries, and that is not what the law was created for. There are just too many holes in the plaintiffs’ argument that the plaintiffs would need to fill in order to win this case, and the FWS has done everything required of them by the ESA’s wording to ensure litigious action against them would fail.