Supreme Court Finds Limits to Endangered Species Act

Attorney Mark Miller of the Pacific Legal Foundation and Edward Poitevent, plaintiff in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, stand outside the Supreme Court in Washington on Nov. 27, 2018. Pacific Legal Foundation

A unanimous Supreme Court overruled bureaucrats enforcing the Endangered Species Act (ESA), ruling that the federal government overreached by limiting the development of private land in Louisiana to help save a rare frog that doesn’t actually live there.

The ruling was also a blow to environmentalists who had been anxious about the case. They considered the fact that the Supreme Court agreed to review the matter ominous because the court rarely takes up cases involving the Endangered Species Act.

In rendering the 8-to-0 decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service on Nov. 27, a united high court served notice on government officials that abusive land grabs under the Endangered Species Act will not stand. (Justice Brett Kavanaugh, who hadn’t yet been confirmed when the court heard the case, didn’t participate in it.)

Justice Stephen Breyer telegraphed the court’s decision during oral arguments Oct. 1, suggesting there had to be a limit to the government’s power to force private landowners to participate in species-preservation efforts by declaring their land to be “critical habitat” essential for the frog’s survival.

Building on a comment by Chief Justice John Roberts, Breyer asked if, in addition to using ponds on private land in Louisiana to save the frogs, it would be reasonable “to build special hothouses in Nome, Alaska” to preserve a species.

“A decision resting on that strikes me as far-fetched,” he said.

Property Rights

Property-rights advocates told The Epoch Times they were pleased with the ruling.

“Today’s decision prevents the federal government from misusing the ESA to abusively regulate private property that cannot support endangered wildlife,” said Tony Francois, a senior attorney with the Pacific Legal Foundation, which represented a landowner in the case.

“The court decided that there must be some limits to what can be declared critical habitat,” said Myron Ebell, director of the Competitive Enterprise Institute’s Center for Energy and Environment.

“The fact that land that cannot support an endangered animal or plant without modification should not be designated as critical habitat is just common sense, but there is little common sense in the way the ESA has been enforced,” Ebell said.

“The court also decided that critical habitat designations can be challenged in court. It’s a step in the right direction, but there’s a long way to go to limit the federal government’s authority under the ESA to take the value of people’s land through regulation. That today’s decision was unanimous is a good sign. Going further will probably divide the court sharply, but the new members give me hope that further progress in restoring property rights is possible in my lifetime.”

Donny Ferguson, president of Americans for a Better Economy, an Alexandria, Virginia-based nonprofit organization, welcomed the ruling but said more needed to be done to protect property owners.

“Today’s ruling is welcome and an unusual, proper reading of the law. Most cases of property owners victimized by the Endangered Species Act do not end this well. Americans will continue to lose their rights to radical activists unless the outdated, unscientific Endangered Species Act is repealed.”

‘An Abuse of Discretion’

In the case, lawyers for Seattle-based Weyerhaeuser Co. challenged the government’s critical-habitat designation for the dusky gopher frog, which is found only in Mississippi. The species was officially listed as endangered under the Endangered Species Act on Dec. 4, 2001. There are reportedly fewer than 100 of the amphibians in existence.

The problem arose in 2012 when the Interior Department’s Fish and Wildlife Service designated 1,544 acres in St. Tammany Parish, Louisiana, a critical habitat under the ESA. The declaration followed the settlement of lawsuits filed by the Center for Biological Diversity and Friends of Mississippi Public Lands.

Agency officials wanted to use existing ephemeral ponds and dig new ones throughout the Deep South to prevent the frog’s extinction. An ephemeral or vernal pond is a seasonal pool of water that supports animal and plant life. The plan was to move some of the frogs to the new ponds and protect the land surrounding them.

Edward Poitevent standing on the land at issue in the court case Weyerhaeuser Co. v. U.S. Fish and Wildlife Service in St. Tammany Parish, Louisiana. Pacific Legal Foundation

The landowners objected because they would not be able to use the lands set aside. The 1,544 acres are owned by Weyerhaeuser and businessman Edward Poitevent. In the 1990s, Weyerhaeuser took over Poitevent’s lease for its timber operations.

The U.S. Court of Appeals for the Fifth Circuit upheld the agency’s finding, determining its critical habitat decision was entitled to deference because of the Supreme Court’s Chevron v. Natural Resources Defense Council decision in 1984. In that landmark administrative law ruling, the court held while courts “must give effect to the unambiguously expressed intent of Congress,” where courts find “Congress has not directly addressed the precise question at issue” and “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

But the Fifth Circuit didn’t apply the proper legal test to the critical habitat designation, instead treating it as “unreviewable,” Chief Justice Roberts wrote for the court.

The circuit court “did not consider whether the [Fish and Wildlife] Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision ... arbitrary, capricious, or an abuse of discretion.”

Landowner Edward Poitevent agreed.

“This was a grossly unfair and inappropriate taking of private land for no purpose, no benefit to the frog, and without any reason or common sense behind it,” Poitevent said in a press release.

“But when you’re in for the fight of your life, you don’t give up. It’s astounding to find out the highest court in the land has not only your back, but the backs of all American landowners.”