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The Supremes and the dusky gopher frog

Updated: Jul 10, 2020

On November 27, a unanimous U.S. Supreme Court ruled in favor of property owners who opposed a Federal government designation of their land as a critical habitat for the endangered dusky gopher frog. (For more on the opinion, click here for The Washington Post’s coverage.)

Our colleague Bill Hartwig, who was Chief of the National Wildlife Refuge System at the U.S. Fish & Wildlife Service, offers his thoughts on the decision’s likely impact:

“The Endangered Species Act is one of the Nation’s strongest environmental laws. But some portions of it are not clearly defined and leave room for divergent interpretation. That problem is at the root of this litigation and the Supreme Court’s decision. For 45 years, the US Fish and Wildlife Service has been defining the ESA and its impact to property owners through policy and practice. But Fish & Wildlife’s definitions of critical habitat have become more strict and that is the issue at the heart of this litigation.

For the Fish and Wildlife Service, established policy allows it to protect occupied habitat essential for endangered species’ survival. The Service is also allowed to protect unoccupied habitat provided that it is in a condition that could support an endangered species.  But the Supreme Court’s latest decision makes clear that the Fish & Wildlife Service may not establish Critical Habitat for an area that may have previously sustained an endangered species but cannot do so in its current condition without significant restoration.

In other words, if an area cannot sustain an endangered species without significant time and funds, that area cannot be determined to be Critical Habitat under the Endangered Species Act.

What does this recent ruling by the Supreme Court mean to a landowner?  A landowner in need of a federal permit no longer needs to fear the impact of the Endangered Species Act unless (1) there are endangered or threatened species currently on his or her property or (2) with little effort, that property can provide critical habitat for a threatened or endangered species.

Succinctly, if there is no habitat, according to the Court, the area can’t be declared critical habitat.

The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.


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