The 5th Circuit Court of Appeals just denied en banc review in a case involving the Fish & Wildlife Service’s designation of critical habitat for the dusky gopher frog. There are only 100 of these “shy” frogs left, and none of them live in the area in Louisiana designated as critical habitat by the FWS.
The focus of the panel decision – and both the panel dissent and the dissent from the denial of en banc review – was whether private land could be considered critical habitat for the dusky gopher frog if no frogs live in the area and the area could not currently support the frog.
The panel majority, relying significantly on Chevron deference, decided that the FWS reasonably concluded that the answer was yes. The two dissents thought Chevron inapplicable, because the case turned “essentially on statutory construction, not on deference to administration discretion or scientific factfinding.”
It’s a close case. I think that the panel majority probability got it right, but I can imagine that the Supreme Court might disagree and I wouldn’t be shocked if they granted certiorari.
I can’t resist pointing out that both dissents need a lesson in logic, which I hereby graciously provide. The dissents argued that land cannot be essential to the frog if the frog doesn’t actually live there. That’s a logical non-sequitur. Just because the frog doesn’t currently live in Louisiana doesn’t mean that the area designated as critical habitat isn’t essential – necessary – critical – to the frog’s survival. There are only 100 dusky gopher frogs left. As the panel opinion noted:
The Service [found] that designating the occupied land in Mississippi was “not sufficient to conserve the species.” The Service explained that “[r]ecovery of the dusky gopher frog will not be possible without the establishment of additional breeding populations of the species,” and it emphasized that it was necessary to designate critical habitat outside of Mississippi to protect against potential local events, such as drought and other environmental disasters. The Service therefore determined that “[a]dditional areas that were not known to be occupied at the time of listing are essential for the conservation of the species.” In sum, all of the experts agreed that designating occupied land alone would not be sufficient to conserve the dusky gopher frog.
In short, if the frog would become extinct without the land in Louisiana as habitat, then that land is critical habitat. It may be that it’s too late to save the dusky gopher frog. That would be too bad. I think it’s rather cute. More to the point, the ESA doesn’t really have a “don’t bother; it’s too late” provision.