Only an actual habitat can be designated a ‘critical’ habitat

OT18 / TAKINGS TALK

In one of its early decisions this term, the U.S. Supreme Court decided to give us all a lesson in the proper use of the English language. It did so in the context of the Endangered Species Act, which directs the Secretary of the Interior, upon listing a species as "endangered," to also designate "critical habitat" for the species. The point of the latter is to guard some areas that are deemed critical to the survival of the species. The species before the court was an amphibian called the dusky gopher frog. Existing frog populations were concentrated in coastal Mississippi. The critical habitat designated in this case to preserve the species was in Louisiana -- in an area inhabited by none of the frogs.

In Weyerhaeuser Co. v. United States Fish & Wildlife Service, 2018 DJDAR 11125 (U.S. Nov. 27, 2018), the Supreme Court faced this conundrum: Can land be designated as "critical" habitat for a species if it is not actually habitat for that species? In other words, can the government just carve out some plot of land that it believes would be useful habitat for the species if the species actually lived there and order it preserved for the species as "critical" even though the endangered critters do not now (and, perhaps, never did) inhabit the land? The lower courts saw no problem with such a set-aside. In fact, the 5th U.S. Circuit Court of Appeals concluded that the definition of "critical habitat" contains no "habitability requirement." (827 F.3d at 452.) The Supreme Court reversed. All justices agreed (except Justice Brett Kavanaugh, who was not yet on the court at the time of argument.)

The opinion opens with a grammar lesson: "Our analysis starts with the phrase 'critical habitat.' According to the ordinary understanding of how adjectives work, 'critical habitat' must also be 'habitat.'" Beyond that, according to the statute, a critical habitat designation must consist of "any habitat of such species which is then considered to be critical habitat." Thus, "only the 'habitat' of the endangered species is eligible for designation as critical habitat."

Recognizing that third grade English put it in a deep hole, the government backtracked. Conceding that critical habitat must indeed be habitat, it argued that the designated property could still satisfy the statutory requirement even though it would "require some degree of modification to support" the species. Well, how much modification would be reasonable? The government concluded that the Louisiana property could be made to accommodate the frogs "with reasonable effort." That is a fascinating concept. At minimum, it raises these questions: Who is required to do the "modification" to make the habitat suitable for the frogs, and at what (and whose) expense? Some justices even queried at oral argument whether property that is otherwise not suitable habitat could "with reasonable effort" be made suitable by (for example) erecting greenhouses in Alaska to replicate the swampy conditions of the Mississippi gulf coast. No suitable response was made by counsel.

The government, as required by statute, performed a study to determine the impact of setting aside the proposed acreage and the cost of doing so. The study reached three alternative conclusions. First, if private development could continue to be made of the property notwithstanding its amphibian preservation, then there would be no cost and no issue. However, if the preservation prohibited development on 60 percent of the property (as was far more likely), the cost to the owners (presuming they would shoulder the expense) would be some $20.4 million. If all development were banned, the cost to the owners would increase to nearly $34 million. The government cast a gimlet eye on the process and concluded that these potential costs were "not disproportionate to the conservation benefits of the designation." Therefore, it refused to exercise its discretion to exclude the property because of the economic impact. It apparently did not occur to the government to inquire about the propriety of foisting the entire cost of this species preservation onto one individual or group of property owners. Under questioning by Chief Justice John Roberts, government counsel conceded that, although it could do so, "the Service understandably very rarely exercises the power of eminent domain. It probably would have the power to do so." (Transcript, p 45.) "Understandably?" The only "understandable" part is that the government seeks to avoid spending its own funds when it can compel some private citizen to cover the cost. From an equitable standpoint, there is little "understandable" in that.

Those questions arose at oral argument in other forms, for example, when Justice Samuel Alito asked government counsel, "I think your argument requires you to provide some definition of reasonable restoration. Now this case is going to be spun, we've already heard questions along this line, as a choice between whether the dusky gopher frog is going to become extinct or not. That's not the choice at all. The question is, who is going to have to pay and who should pay for the preservation of this public good?" (Transcript, p. 35.) Sensing a bit of a cavalier attitude by the government toward the costs being imposed on private property owners, Justice Neil Gorsuch queried: "There's nothing preventing the government from purchasing land or taking other actions to protect an endangered species, whether on critical habitat or elsewhere, right? (Transcript, p. 34.) Government counsel finally conceded that "The federal government could purchase the land if -- for example, if the landowner was willing to sell it. So far, there hasn't been any indication that they would be. (Transcript, p 45.)

The case is not over. The Supreme Court remanded the matter to the 5th Circuit for reconsideration of the question of the economic impact of the designation and the question of whether to proceed in light of the severe impact on the private property owners. But it may not get that far. Remember that the first holding in the case is that this "habitat" is not "critical" for this particular frog and thus all else may be irrelevant.