Dusty gopher frogs now live only in Mississippi, but they used to live in Louisiana and specifically in Unit 1. They used some ponds in Unit 1 – ephemeral ponds – that have particular qualities necessary for the frogs’ breeding season. There aren’t too many dusty gopher frogs left (around 135 adults, according to FWS), so FWS is trying to help them recover. FWS declared it would need to preserve Unit 1, not just the ponds but also the surrounding space which would serve as traveling grounds for the frogs between the ponds and their non-breeding spaces.
Weyerhaeuser: Unit 1 is not a “Critical Habitat”
Weyerhaeuser sued FWS. The company argued FWS exceeded its authority when it designated Unit 1 as a “Critical Habitat” for the frogs. That depends on how you read the Endangered Species Act.
According to Weyerhaeuser, an area can only be a “Critical Habitat” if it has all of the characteristics the species would need for survival. Unit 1 has the ponds that frogs used to use for breeding season, but Weyerhaeuser claims the state of the area has changed in recent years due to development. Unit 1 no longer provides suitable habitat. It would require a lot of work to turn Unit 1 into a suitable habitat (“fire treatment” to change the land qualities). Because the land is not currently even habitable by the frogs, Unit 1 cannot be a “Critical Habitat.”
Moreover, FWS is supposed to account for the economic harm of making such a determination. When Weyerhaeuser told FMS about the $20-$34 million the designation would cost in terms of permitting and lost development opportunity, the agency didn’t account for it correctly and simply said the biological benefits outweighed it.
FMS’s response: the habitat is “Critical”
FMS says the agency is only acting to “conserve” the species. That’s what the Endangered Species Act tells the agency to do. And “conservation” in the Act is the “use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point [of non-endangerment]. The Act allows FWS to designate an area which currently is uninhabited by the species if the current spaces are inadequate to conserve the species.
FWS admitted that Unit 1 isn’t in perfect condition for the frogs at the moment, but they are hopeful that the area can become suitable for the frogs. The agency would like to work with the landowners and perhaps help the landowners get some federal funding for development plans which could work in favor of the frogs as well.
Once the designation kicks in, private parties aren’t bound to take any actions. They just can’t modify the habitat in a way that would cause injury or death to a member of the endangered species. The timber harvesting could still go on, and development might not even need federal approval. That would depend on whether the landowners are trying to fill in certain types of wetlands.
Generally, once the analysis gets into the specifics of an agency’s expertise, courts are supposed to defer to agencies. The Chevron v. NRDC case in 1984 set the standard. As long as the Act could be reasonably interpreted to allow the agency to take a given action, the court will trust the agency’s judgment.
Where the act says uninhabited areas can be designated if habited areas are inadequate, the court might see if the agency made a reasonable effort to determine that the habited areas are inadequate, but under Chevron, a court might not question the details of that decision.
In this case, FWS went through a detailed process in deciding Unit 1 was needed. So the argument is tougher on Weyerhaeuser. Weyerhaeuser must argue that the Act specifically does not allow any areas that currently aren’t a complete environmental fit for the frogs to be designated “Critical Habitats.” The statute doesn’t say that exactly, so Weyerhaeuser is seeking to imply that conclusion by combining several pieces of the Act.
Disapproval of Chevron
Disapproval of the Chevron doctrine has come from the conservative end of the spectrum, with arguments that it leaves agency power unchecked. Over the years since Chevron has been the rule, it has been debated and judges have found ways to avoid applying it.
Here is an article outlining recent views of the Justices on Chevron. Notably, it references a concurrence from Justice Kennedy in a case of the 2017 term questioning the way Chevron is applied. Kennedy just retired and his potential replacement, Kavanaugh, has disapproved of Chevron too.
However, because Chevron is the current precedent, it would take a confident Supreme Court to overturn it. This case does not present the most controversial application of Chevron, so it may not be the right case in which to do it.
The Supreme Court will hear arguments on October 1, 2018.