Document Type

Court Brief

Publication Date

7-3-2018

Abstract

The Fifth Circuit correctly upheld the Secretary’s designation of the St. Tammany Parish tract (Unit 1) as critical habitat for the dusky gopher frog. To advance the ESA’s goals of species survival and recovery, Congress explicitly gave the Secretary broad discretion to designate as critical habitat areas that are unoccupied where the Secretary determines “that such areas are essential for the conservation” of the species. 16 U.S.C. § 1532(5)(A)(ii). The question whether designation of such habitat has the potential to serve the recovery goals for a particular species is a matter within the sound expertise of the Secretary.

Here, the Secretary reasonably interpreted the ESA when he found that Unit 1—an area that the frog previously occupied and that continues to contain rare ephemeral ponds suitable for the frog’s breeding habitat—is “essential for the conservation” of the species. Accordingly, and based on the unanimous recommendation of the scientific peer review panel, the Secretary properly designated the area as critical habitat. The text, structure, purpose, and legislative history of the ESA support the Secretary’s interpretation and critical habitat designation.

Contrary to Petitioner’s argument and the views of the dissent below, the plain text of the ESA does not include a “habitability” requirement. Rather, Congress made a conscious decision to differentiate between occupied and unoccupied habitat, making it clear that unoccupied habitat need not contain all of the “physical or biological features” required for immediate occupancy. See id. § 1532(5)(A)(i), (ii).

The structure of the Act, along with its broad remedial purpose of species recovery, supports the Secretary’s interpretation of “essential for the conservation” of the species. The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species . . . to the point at which the measures provided pursuant to [the Act] are no longer necessary.” Id. § 1532(3). Another provision requires the Secretary to develop and implement recovery plans “for the conservation and survival of endangered species.” Id. § 1533(f)(1). These provisions—read together against the backdrop of a statutory scheme aimed at species recovery—support the interpretation that the Secretary may designate unoccupied habitat as critical habitat even if, as here, it has been altered by human activities and requires substantial restoration in order to fully meet the physical and biological needs of the species. Because the land at issue in this case offers the only viable option for species recovery, prohibiting the Secretary from designating that land would be contrary to the Act’s structure and purpose.

The legislative history confirms the reasonableness of the Secretary’s interpretation and contradicts Petitioner’s reading. In the 1978 amendments to the Act, Congress explicitly rejected language that would have imposed temporal and habitability requirements on the designation of unoccupied habitat. This history further confirms that Congress intended to give the Secretary broad authority to designate unoccupied critical habitat that might require the reintroduction of species unable to reach it on their own.

Contrary to Petitioner’s suggestion, the interpretation of the ESA that amici support would not grant carte blanche authority to the Secretary to designate anything and everything as critical habitat. The presence of a rare, virtually impossible to reproduce complex of breeding ponds—the last remaining within the historic range of the frog outside of Mississippi—is what renders the protection of Unit 1 “essential for the conservation” of the frog and justifies the Secretary’s critical habitat designation.

The Fifth Circuit also correctly declined to review the Secretary’s decision not to exercise his discretion to exclude an area from critical habitat designation. The text of section 4(b)(2) limits the Secretary’s discretion to exclude an area from designation in certain circumstances (i.e. where the benefits of exclusion do not outweigh the benefits of inclusion or where extinction would result from exclusion). A decision to exclude—which is equivalent to a decision not to designate critical habitat—is, therefore, properly reviewable.

However, the statute is silent with respect to decisions not to exclude. Section 4(b)(2) contains no “judicially manageable standards” limiting the Secretary’s exercise of discretionary authority not to exclude. Heckler v. Chaney, 470 U.S. 821, 830 (1985).

Thus, a decision by the Secretary not to exclude an area from designation is unreviewable because it is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).

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