st_tammany_navBy Trey Wassdorf, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law.

At the behest of special-interest activists and government regulators, federal courts continue to broaden the scope of the Endangered Species Act (ESA), often in ways that do little to actually preserve plants and animals.  The latest expansive ruling comes from the US Court of Appeals for the Fifth Circuit.  In Markle Interests, L.L.C. v. United States Fish and Wildlife Service, the court upheld the designation of 1,544 acres of private land in Louisiana as “critical habitat” for the dusky gopher frog, Rana sevosa, even though it does not reside on the land and the land does not currently feature the characteristics needed to support the frog.

In 2001 the US Fish & Wildlife Service (FWS) sought to list the dusky gopher frog, a population of only 100 adult individuals, in Mississippi as endangered.  This listing opened the door for protection of critical habitat under the ESA.  Nine years later, FWS proposed a rule that would have listed 1,957 acres in Mississippi as critical habitat for the frog.  After input during the peer-review process the FWS increased the critical habitat area to include 6,477 acres in four Mississippi counties as well as one Louisiana parish, St. Tammany.  This final designation of critical habitat went through a lengthy certification process including: two proposed rules, an economic analysis, two rounds of notice and comment, a scientific peer-review process including responses from six experts, and a public hearing.  The only reason for the designation of so-called Unit 1 in Louisiana is the presence of five ephemeral ponds that the dusky gopher frog once used for breeding.

Despite this lengthy process, the court seems to have missed the point; the dusky gopher frog has not occupied this land for many decades, could not do so in its present condition, and would require extensive remediation before an attempt could be made to reintroduce it there successfully.  The ESA does not expressly limit the designation of critical habitat to areas that are inhabited or habitable by a species.  However, in order to designate an area as a critical habitat that is not currently occupied by the species, FWS must demonstrate that the area is “essential for the conservation of the species.”  One would think that for an area to be essential to the conservation of a species that it would have to currently support the species, be able to support the species, or supply some necessary element for the survival of the species.  In addition, for unoccupied land, FWS must determine that the current range of the species would be inadequate to ensure its conservation.

frogThe level of speculation that FWS has engaged in regarding the future of this land reaches unfathomable depths.  FWS has essentially decided that at some undetermined time, after the expiration of the logging lease in 2043, a property owner would be willing to spend millions of dollars to rehabilitate the land and reintroduce the dusky gopher frog.  This rehabilitation is not a simple process; the land would have to be cleared of the species of tree presently there, replaced with a specific species of pine tree, wait for them to grow, and perform maintenance on the entire 1,544 acres until the frog was successfully reintroduced.  Such rampant speculation and wishful thinking cannot be condoned under the ESA.

With Markle Interests, the Fifth Circuit joins the growing list of courts that have expanded the ESA’s reach.  Its outcome and approach are similar to another recent ESA decision from the US District Court for the District of Montana in Defenders of Wildlife v. Jewell.  There, a federal judge rejected FWS’s decision to remove the wolverine from the threatened-species list.  He embraced the activist group’s argument that FWS must take into consideration the future effects of climate change, however currently unseen or speculative, when making listing determinations.

One tool of judicial interpretation that judges commonly deploy to broaden regulators’ authority under laws like the ESA is Chevron deference.  Judge Owen, in her Markle Interests dissent, argues that the majority’s analysis under Chevron was deeply flawed.  Judge Higginson’s opinion accepted FWS’s breathtakingly broad reading of the term “essential” in the ESA provision on critical habitat.  Judge Owen, relying on dictionary definitions, wrote that FWS’s interpretation cannot be maintained because the agency has exceeded the “boundaries of the latitude given to an agency in construing a statute to which Chevron deference is applicable.”  She added, “[T]he area at issue is not presently ‘essential for the conservation of the species’ because it plays no part in the conservation of that species.”

FWS’s authority under the ESA is admittedly broad, but the profoundly remote possibility that a land area could, with great effort and expense, become a species’ habitat is not the standard Congress adopted.  After all, scientists believe that it is theoretically possible to terraform Mars; but that does not mean FWS could designate it as a critical habitat.

ESA critical habitat determinations severely affect the owners and users of land so designated.  Markle Interests deals an especially unjust blow to those who live and work in St. Tammany Parish.  Because the dusky gopher frog has not resided in the Parish for many years, investment and other economic decisions had no reason to take into consideration the risk of FWS restrictions on land use there.  Perhaps the critical habitat designation will give rise to landowners’ takings claims under the Fifth Amendment, though such claims are traditionally expensive to pursue and difficult to win.

Absent a reversal by the Fifth Circuit en banc or a US Supreme Court certiorari grant, Markle Interests is now binding precedent in states with millions of acres of land and many species of plants and animals.  Small and large landowners alike will be forced to speculate whether the stand of trees or small body of water on or near their property could support a species that resides many miles away.  And no doubt, FWS and its allies in the environmental activist community will be looking for opportunities to exploit Markle Interests as persuasive authority in other circuits.  Common sense is now endangered in Louisiana far more than the dusky gopher frog.