September 8, 2017

Why Fish and Wildlife is wrong on critical habitat

By M. Reed Hopper Senior Attorney

Recently, the Sacramento Bee ran an op-ed entitled Why Fish and Wildlife is right on endangered frogs that criticized a lawsuit filed by the Pacific Legal Foundation on behalf of California farmers and ranchers. The op-ed misrepresents the lawsuit and perpetuates a misconception about the Endangered Species Act.

PLF’s lawsuit does not question whether the U.S. Fish and Wildlife Service was right to list three California amphibians as protected species under the ESA. Nor does it question whether the Service was right to designate critical habitat to conserve the species. Under the law, the Service is required to make these determinations. However, when the Service designated critical habitat covering 1.8 million acres in 16 counties, the Regulatory Flexibility Act required the Service to analyze and adopt alternatives to the designation to avoid significant impacts on small businesses, like the farmers and ranchers whose livelihood is at risk from proposed restrictions on grazing in habitat areas. Fortunately, the ESA expressly authorizes the Service to exclude areas from critical habitat designation where the economic burdens outweigh the benefit to the species. Although farmers and ranchers identified essential grazing areas that could be excluded without harming the species, the Service refused to consider this alternative. Hence the lawsuit.

As for the author’s claim (put forward by the Service) that critical habitat designation imposes no burdens on private parties because it  “does not authorize the government to regulate private actions on private lands, confiscate private property, place any restrictions on use or establish land management standards,” nothing could be further from the truth. PLF is currently litigating a case in the U.S. Supreme Court, Markle v. U.S. Fish and Wildlife Service, wherein the Service designated over 1500 acres of private land as critical habitat for the dusky gopher. Although the land cannot be used as habitat, because the frog cannot survive on the land, the Service itself concluded its “restrictions on use” could cost the small landowners $34 million. So much for the notion that critical habitat imposes no burdens on private parties.

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Weyerhaeuser/Markle v. U.S. Fish and Wildlife Service

As a child, Edward Poitevent’s family cut down Christmas trees on their lumber-rich land in Louisiana, and one day he’d like to leave the property to his own children. But federal bureaucrats jeopardized his legacy when they declared nearly 1,500 acres of his family’s private land as a critical habitat for the dusky gopher frog—a species not seen in the state for more than 50 years. Neither the Endangered Species Act nor congressional intent justifies such government-sanctioned property theft. Represented by PLF, Edward sued to defend his constitutionally protected property rights. In a unanimous decision announced November 27, 2018, the High Court agreed with Edward that the Fish and Wildlife Service overstepped its authority with the critical habitat designation and the Court remanded the case so that the lower court could consider Edward’s arguments anew.

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