A Victory for Property Rights. And Common Sense.
Federal wildlife conservation officials are proposing, for the first time, to amend regulations that define what “habitat” means under the Endangered Species Act (ESA). It’s a clarification of law, and the closing of a loophole, that’s long overdue.
Despite the predictable outcry from environmental groups, the proposed habitat definition will likely help species conservation. The new definition simply states that if a species does not or cannot live in a certain area in its current state, it is not habitat. Moreover, the clarity provided by this new definition should decrease the amount of time and resources that federal agencies spend on defending (or attempting to avoid) lawsuits brought by activist groups.
This new rulemaking is the latest instance of the Trump administration’s commendable efforts to streamline and reform the ESA and other major environmental statutes, such as the National Environmental Policy Act and the Bureau of Land Management’s grazing regulations.
Of course, one wonders: why would the feds need to include such an obvious definition of “habitat” in the ESA? The answer is that this rulemaking was prompted at least in part by a 2018 Supreme Court decision, Weyerhauser v. U.S. Fish & Wildlife Service.
Weyerhauser concerned the Fish & Wildlife Service’s (FWS) management of the dusky gopher frog, a rare amphibian that lives in the swamps of the Mississippi Delta. Although the frog only lives in the State of Mississippi, FWS designated critical habitat on 1500 acres of private timber land across the state line in Louisiana — despite the fact that the frog hadn’t been seen in Louisiana in half a century.
The impact of this might have cost up to $34 million in lost timber sales to loggers. What’s worse, the frog’s alleged critical habitat was not actually habitable because the area lacked necessary attributes such as open tree canopies. In short, the 1500 acres of private land that FWS declared to be under its management authority did not and could not support dusky gopher frog populations.
Thankfully, in a huge win for private property interests, the U.S. Supreme Court unanimously held against FWS. “According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat,’” Chief Justice John Roberts sardonically wrote for the Court.
Thus, the proposed rule now offered by the feds essentially codifies the holding in Weyerhauser: you can’t have “critical” habitat unless you have habitat to begin with. And it must be actual habitat — land that is actually capable of supporting the species in question without modifying the habitat. Too bad it took a trip to the Supreme Court to force FWS to admit the obvious.
The inability of FWS in Weyerhauser to literally see the forest for the trees is indicative of a common problem that dogs a lot of conservation efforts across the nation: recovery often devolves into a battle over the sheer scope of habitat. At its worst, critical habitat designation winds up being little more than simply drawing lines on a map with little or no improvement to the species in question. And in many cases, the negligible benefit to the species comes at the cost of a tremendous impact on private enterprise and property rights.
A prime example is the spotted owl. Much of the Pacific Northwest’s timber industry was destroyed decades ago because huge swathes of forest land were designated as “critical habitat” for the species. However, FWS recently proposed to eliminate about 200,000 of the whopping 9.6 million acres of spotted owl habitat. Why? Because the spotted owl doesn’t need it. The real obstacle to spotted owl recovery is competition from a non-native species, the barred owl, which is driving the spotted owl out of the area. This put FWS in the awkward position of having to kill one owl species in order to preserve the otherwise uninhabitable “habitat” for another.
It is good to see FWS acknowledge that existing spotted owl habitat is grossly excessive. But this acknowledgement comes many years too late for numerous logging operations, mills, and related industries that shut down because of concerns over spotted owl habitat, not to mention the rural communities that depended on them.
Habitat is merely one piece of the puzzle when it comes to species conservation — a necessary, but not sufficient, condition of recovery. In recognizing this, the new commonsense definition of “habitat” is a breath of fresh air. The Administration deserves praise for its proactive attempt to remedy the injustice to private property interests that the ESA so often inflicts.
Brian Gregg is an attorney for Mountain States Legal Foundation specializing in public land and natural resource law.