by Greg Walcher, E&E Legal Senior Policy Fellow
As appearing in the Daily Sentinel
When the U.S. Supreme Court decided the case of the dusky gopher frog in 2018, it attracted press coverage around the world, because of two details that fascinated observers everywhere. One was the frog itself, a cute little thing smaller than the palm of your hand. Second, the court’s ruling — in an era noted for divisive party-line splits — was unanimous.
The dusky gopher frog was listed as endangered in 2001, and is found only at one pond in Mississippi. But the U.S. Fish and Wildlife Service (USFWS) had designated 1,544 acres of private land in Louisiana as “critical habitat,” even though no dusky gopher frog had lived anywhere in Louisiana for at least 50 years. Previously, federal courts generally “deferred” to the agency’s judgment on what constitutes “critical habitat,” but the unanimous court said this time the agency went too far. They issued an unusual opinion, essentially a grammar lesson, explaining that “critical” is the adjective and “habitat” is the noun. Land cannot be “critical habitat” if it is not “habitat” at all.
The court’s unanimous “scolding” of the USFWS was the subject of many editorials and columns, but few actually speculated (as I did at the time) about the ripple effects it might have on other cases. In fact, USFWS has designated “critical habitat” on more than 200 million acres of land across the country for various species — an area larger than Texas and any medium-sized state combined — very often in areas where the protected species does not actually live.