Frogs or freedom? Landowners win as court rejects FWS power play

The dusky gopher frog is a critter that can be found in certain areas of Mississippi — and nowhere else. Yet the U.S. Fish and Wildlife Service decided to “protect” the dusky gopher frog by using the Endangered Species Act to designate a 1,500-acre tract of private forestry land in Louisiana as “critical habitat necessary for the species’ survival,” even though the land is not inhabited by the frog, and is in fact unsuitable for the species.

Naturally, the owners objected — the economic hit would have been up to $34 million, though the FWS refused to take that into account. The agency then said its decision wasn’t reviewable by any court.

That’s right. According to the federal government, the FWS’s irrational decision to designate uninhabited areas as critical habitat was not subject to judicial review.

The landowner’s position, quite reasonably, was that private land couldn’t be designated as critical habitat unless it was, at the very least, a habitat — meaning that the endangered frog could and did live there.

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It took years of litigation (mostly over whether the government’s decision was judicially reviewable), but the case eventually won a hearing before in the U.S. Supreme Court. In Weyerhaeuser v. United States Fish and Wildlife Service, the Court held in a unanimous decision that centuries of tradition, as well as the Administrative Procedure Act, provided a presumption of reviewability. The Court sent the case back to the lower courts to determine whether the government’s decision to designate as critical habitat the 1,500-acre forest tract could withstand the red-face test.

The ruling is a victory for private landowners throughout the nation who have been plagued for decades by critical habitat designations, which substantially limit the use and decrease the value of private land.

For example, to obtain a federal permit to grade a site to control erosion or build a pond in an area designated critical habitat, landowners must go to the FWS for a “biological opinion” which sets forth specific conditions that must be included in the permit. This, and other special requirements, results in a laborious and time-consuming process which often makes productive use of these private lands impracticable or impossible.

And in some cases we’re talking about hundreds of thousands, even millions of acres. For example, the entire West Coast of the United States from the mid-point of California to the northern tip of the Washington was designated as critical habitat for a marine species known as the green sturgeon.

Until the Weyerhaeuser decision, lower courts had consistently held that the government’s refusal to exclude areas from critical habitat designation based on economic impacts could not be judicially reviewed, thus leaving landowners at the government’s mercy.

The absurdity of those lower court decisions came into full view in Weyerhaeuser because the designated habitat was neither inhabited nor even inhabitable by the species the government sought to protect. After decades of leaving property owners without a remedy to combat the government’s refusal to act rationally in connection with critical habitat determinations, the Weyerhaeuser decision finally invoked the ancient remedy of judicial review.

Now, the lower courts will have to decide the substantive questions posed by the landowners: Can land that is neither inhabited nor inhabitable by the dusky gopher frog be regulated as critical habitat for the species? Will the biological benefits to the species outweigh the cost to the owners?

After the Supreme Court made its ruling, many in the press portrayed it as a loss for the frog. The New York Times, for example, reported that “the dusky gopher frog loses a round in the Supreme Court.”

The truth is the case was a win for the rule of law. And the dusky gopher frogs are no worse off than they were before.

Ted Hadzi-Antich and Ryan D. Walters are attorneys with the Center for the American Future at the Texas Public Policy Foundation. They filed an amicus brief in the Weyerhaeuser case on behalf of the National Federation of Business and the Building Industry Association of the Bay Area arguing that all critical habitat decisions made by the federal government under the Endangered Species Act should be judicially reviewable.