Amicus Curiae Brief — Weyerhaeuser Company, Petitioner v. United States Fish and Wildlife Service, et al.

Supreme Court briefJul 6, 2018

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No. 17-71

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In The

Supreme Court of the United States

-----------------------------------------------------------------WEYERHAEUSER COMPANY,

Petitioner,

UNITED STATES FISH AND

WILDLIFE SERVICE, et al.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

-----------------------------------------------------------------BRIEF OF DEFENDERS OF WILDLIFE,

ANIMAL WELFARE INSTITUTE, HUMANE

SOCIETY OF THE UNITED STATES, SIERRA CLUB,

AND WILDEARTH GUARDIANS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

-----------------------------------------------------------------JASON C. RYLANDER

Counsel of Record

STEVEN J. GOLDSTEIN

DEFENDERS OF WILDLIFE

1130 17th Street N.W.

Washington, D.C. 20036

(202) 682-9400

jrylander@defenders.org

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

INTERESTS OF THE AMICI CURIAE ...............

SUMMARY OF THE ARGUMENT .....................

ARGUMENT ........................................................

Critical habitat is an integral part of the

ESA’s comprehensive program to conserve

imperiled species .......................................

A. Congress designed the ESA to address

the threats of habitat loss and degradation ...................................................

B. Designating critical habitat promotes

species recovery ................................... 11

C. Petitioner vastly overstates the economic impacts of critical habitat designation ................................................ 17

II.

Imposing a temporal habitability requirement on unoccupied critical habitat is

neither mandated by the ESA’s plain language nor reconcilable with the Act’s conservation purpose ...................................... 20

A. The ESA does not require that critical

habitat be habitable at the time of designation ................................................ 20

B. A temporal habitability requirement

would undermine the conservation

value of critical habitat ....................... 23

C. The Fifth Circuit’s ruling did not

“vastly expand the ESA” ..................... 27

TABLE OF CONTENTS—Continued

Page

III.

The Fifth Circuit’s ruling neither impinges on the rights of states nor raises

constitutional questions ............................ 31

CONCLUSION..................................................... 35

iii

TABLE OF AUTHORITIES

Page

CASES

Alabama-Tombigbee Rivers Coal. v. Kempthorne,

477 F.3d 1250 (11th Cir. 2007), cert. denied,

552 U.S. 1097 (2008)................................................33

Andrus v. Allard, 444 U.S. 51 (1979) ..........................32

Babbitt v. Sweet Home Chapter of Cmtys. for a

Great Or., 515 U.S. 687 (1995) ................................10

Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (1983) ......................................31

Bear Valley Mutual Water Co. v. Jewell, 790 F.3d

977 (9th Cir. 2015) ...................................................27

Dean v. United States, 556 U.S. 568 (2009) ................21

GDF Realty Inv., Ltd. v. Norton, 362 F.3d 286

(2004), cert. denied, 545 U.S. 1114 (2005) ...............34

Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) ..... 32, 34

Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004)..................15

Gonzales v. Raich, 545 U.S. 1 (2005) ..........................34

Markle Interests, L.L.C. v. U.S. Fish & Wildlife

Serv., 827 F.3d 452 (5th Cir. 2016) .............. 19, 28, 31

Markle Interests, L.L.C. v. U.S. Fish & Wildlife

Serv., 848 F.3d 635 (5th Cir. 2017) .................... 26, 27

Missouri v. Holland, 252 U.S. 416 (1920) ...................32

TABLE OF AUTHORITIES—Continued

Page

Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d

1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 937

(1998) .......................................................................34

Nat’l Ass’n of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007) ..........................................11

Palila v. Haw. Dep’t of Land & Natural Res., 471

F. Supp. 985 (D. Haw. 1979), aff ’d, 639 F.2d

495 (9th Cir. 1981) ...................................................33

People for the Ethical Treatment of Property

Owners v. U.S. Fish & Wildlife Serv., 852 F.3d

990 (10th Cir. 2017), cert. denied, 138 S. Ct.

649 (2018) .......................................................... 32, 33

Perez v. United States, 402 U.S. 146 (1971) ................34

Rancho Viejo, L.L.C. v. Norton, 323 F.3d 1062

(D.C. Cir. 2003) .................................................. 32, 34

San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163 (9th Cir. 2011), cert. denied

sub nom. Orchards v. Salazar, 565 U.S. 1009

(2011) .......................................................................33

Sierra Club v. U.S. Fish & Wildlife Serv., 245

F.3d 434 (5th Cir. 2001) ...........................................28

Stenberg v. Carhart, 530 U.S. 914 (2000) ...................22

Tenn. Valley Auth. v. Hill, 437 U.S. 153

(1978) ........................................................... 1, 6, 8, 33

Zobrest v. Catalina Foothills School Dist., 509

U.S. 1 (1993) ............................................................31

TABLE OF AUTHORITIES—Continued

Page

STATUTES

16 U.S.C. § 1531(a)(3) .................................................33

16 U.S.C. § 1531(b) ............................................ 7, 16, 24

16 U.S.C. § 1532(3) ............................................ 8, 16, 28

16 U.S.C. § 1532(5) ................................................ 15, 29

16 U.S.C. § 1532(5)(A) .................................................28

16 U.S.C. § 1532(5)(A)(i) ......................................... 9, 21

16 U.S.C. § 1532(5)(A)(ii) ........................................ 9, 21

16 U.S.C. § 1533(a)(1) ...................................................8

16 U.S.C. § 1533(a)(1)(A) ........................................ 8, 11

16 U.S.C. § 1533(a)(3)(A) ..............................................8

16 U.S.C. § 1533(a)(3)(B) ............................................15

16 U.S.C. § 1533(b)(2) ............................................. 9, 29

16 U.S.C. § 1533(d) ......................................................10

16 U.S.C. § 1534 ..........................................................15

16 U.S.C. § 1536 ..........................................................15

16 U.S.C. § 1536(a)(1) ........................................... 10, 12

16 U.S.C. § 1536(a)(2) ..................................... 10, 15, 17

16 U.S.C. § 1538 .................................................... 10, 15

16 U.S.C. § 1538(a)(1)(B) ..............................................9

Clean Water Act, 33 U.S.C. §§ 1251 et seq. .................18

TABLE OF AUTHORITIES—Continued

Page

Lacey Act of 1900, 16 U.S.C. §§ 3371–3378, 18

U.S.C. § 42................................................................31

Migratory Bird Treaty Act of 1918, 16 U.S.C.

§§ 703–711 ...............................................................31

OTHER AUTHORITIES

50 C.F.R. § 17.3 ...........................................................10

50 C.F.R. § 17.31(a) .....................................................10

119 Cong. Rec. 30,162 (1973) ........................................7

119 Cong. Rec. 30,528 (1973) ........................................7

124 Cong. Rec. S21,575 (daily ed. July 19, 1978).........7

45 Fed. Reg. 63,812 (Sep. 25, 1980) ............................26

70 Fed. Reg. 46,924 (Aug. 11, 2005) ...........................25

73 Fed. Reg. 62,816 (Oct. 21, 2008) ............................25

75 Fed. Reg. 31,387 (June 3, 2010) .............................29

75 Fed. Reg. 77,961 (Dec. 14, 2010) ............................25

77 Fed. Reg. 35,118 (June 12, 2012) ............... 19, 23, 29

79 Fed. Reg. 19,712 (Apr. 9, 2014) ..............................13

79 Fed. Reg. 19,760 (Apr. 9, 2014) ..............................13

81 Fed. Reg. 14,264 (Mar. 16, 2016) ...........................12

Abbey E. Camaclang et al., Current Practices in

the Identification of Critical Habitat for

Threatened Species, 29 Conservation Biology

482 (2014) ................................................................30

vii

TABLE OF AUTHORITIES—Continued

Page

Amy N. Hagen & Karen E. Hodges, Resolving

Critical Habitat Designation Failures: Reconciling Law, Policy, and Biology, 20 Conservation Biology 399 (2006) ...........................................16

Black’s Law Dictionary (10th ed. 2014) .....................28

Daniel A. Farber, Separated at Birth? Addressing the Twin Crises of Biodiversity and Climate Change, 42 Ecology L.Q. 841 (2015) ................4

Daniel M. Evans et al., Species Recovery in

the United States: Increasing the Effectiveness

of the Endangered Species Act, Issues in Ecology, Winter 2016 .................................................. 4, 20

Dashiell Farewell, Revitalizing Critical Habitat:

The Ninth Circuit’s Pro-Efficiency Approach,

46 Envtl. L. 653 (2016) ............................................14

Dave Owen, Critical Habitat and the Challenge

of Regulating Small Harms, 64 Fla. L. Rev.

141 (2012) ................................................................18

David Wilcove et al., Quantifying Threats to Imperiled Species in the United States, 48 Am.

Inst. Bio. Sciences 607 (1998) ...................................4

Elizabeth Kolbert, The Sixth Extinction: An Unnatural History (2014) ..............................................4

H.R. Rep. No. 93-412 (1973) .........................................6

H.R. Rep. No. 94-887 (1976) .........................................7

H.R. Rep. No. 95-1625 (1978) .......................................7

H.R. Rep. No. 97-567 (1982) .......................................18

viii

TABLE OF AUTHORITIES—Continued

Page

Jack McDonald, Critical Habitat Designation

Under the Endangered Species Act: A Road to

Recovery?, 28 Envtl. L. 671 (1998) ..........................13

Jacob Malcom & Ya-Wei Li, Data Contradict

Common Perceptions About a Controversial

Provision of the U.S. Endangered Species Act,

112 PNAS 15844 (2015) .................................... 17, 18

Kalyani Robbins, Recovery of an Endangered

Provision: Untangling and Reviving Critical

Habitat Under the Endangered Species Act, 58

Buff. L. Rev. 1095 (2010) .........................................16

Martin F.J. Taylor, The Effectiveness of the Endangered Species Act: A Quantitative Analysis, 55 BioScience 360 (2005) ..................................16

Michael J. Bean & Melanie J. Rowland, The Evolution of National Wildlife Law (3d ed. 1997) ........15

National Research Council, Science and the Endangered Species Act (1995), https://www.nap.

edu/read/4978/chapter/6#72 .....................................4

Press Release, Ctr. for Biological Diversity, Land

Purchase Protects Essential Mississippi Habitat for Endangered Dusky Gopher Frog (May

14, 2015), https://www.biologicaldiversity.org/

news/press_releases/2015/dusky-gopher-frog05-14-2015.html ......................................................14

Rangewide Conservation Plan for Longleaf Pine,

America’s Longleaf Restoration Initiative

(2009), http://americaslongleaf.org/media/86/

conservation_plan.pdf .............................................24

TABLE OF AUTHORITIES—Continued

Page

S. Rep. No. 93-307 (1973) as reprinted in 1973

U.S.C.C.A.N. 2989......................................................7

Stephanie Brauer, Note, Arizona Cattle Growers’ Pyrrhic Victory for Critical Habitat, 38

Ecology L.Q. 369 (2011) ..........................................30

Stuart L. Pimm et al., The Biodiversity of Species and Their Rates of Extinction, Distribution, and Protection, 344 Science 987 (2014)............4

U.S. Fish & Wildlife Serv., Delisted Species,

https://ecos.fws.gov/ecp0/reports/delisting-report

(last visited July 2, 2018) ..........................................3

U.S. Fish & Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered Species Consultation

Handbook, https://www.fws.gov/endangered/

esa-library/pdf/esa_section7_handbook.pdf (last

visited July 2, 2018) ................................................26

U.S. Forest Service, New Mexico Meadow Jumping Mouse Habitat Improvement Projects

on the Agua Chiquita Grazing Allotment,

https://www.fs.usda.gov/project/?project=51273

(last visited July 2, 2018) ........................................12

Webster’s Third New Intl. Dictionary (1976)........ 22, 23

INTERESTS OF THE AMICI CURIAE1

Defenders of Wildlife, Animal Welfare Institute,

Humane Society of the United States, Sierra Club, and

Wildearth Guardians (Amici) are leading non-profit

conservation organizations with longstanding interests in protecting wildlife, particularly endangered

and threatened species, from habitat destruction and

degradation and other threats. On behalf of their millions of members and supporters nationwide, Amici

advocate for the effective implementation of the Endangered Species Act (ESA or Act) and seek to ensure

that native species and the ecosystems on which they

depend are preserved and maintained for present and

future generations. Amici’s extensive experience with

the ESA may assist the Court in understanding how

the statute operates in practice to protect imperiled

species and their habitats without imposing undue

burdens on private landowners.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

1. The ESA is “the most comprehensive legislation for the preservation of endangered species ever

enacted by any nation.” Tenn. Valley Auth. v. Hill, 437

U.S. 153, 180 (1978). In enacting the ESA, Congress

recognized that habitat protection is vital for

No counsel for a party authored this brief in whole or in

part, and no person other than Amici, their members, or their

counsel made a monetary contribution to its preparation or submission. All parties have consented to the filing of this brief.

recovering most imperiled species and established the

purpose of the statute to “provide a means” for conservation of the ecosystems on which threatened and endangered species depend. Thus, in addition to

prohibiting actions that directly kill or harm members

of listed species, Congress ordered the Secretary of the

Interior to identify the areas “essential to the conservation of the species” and to designate them as critical

habitat “to the maximum extent prudent and determinable.” Congress also required that all federal agencies

ensure that their actions or authorizations do not

cause the “destruction” or “adverse modification” of

critical habitat. Designation of critical habitat—both

occupied and unoccupied areas—is an indispensable

part of Congress’s comprehensive program to recover

threatened and endangered species. Critical habitat

designation provides important benefits for species

and generally does so with minimal adverse impact on

private lands. Indeed, recovery of species may well depend on designation of unoccupied critical habitat as

there is no other mechanism in the ESA that adequately protects these areas.

2. The ESA does not contain, and this Court

should not impose, a current “habitability” requirement on the designation of unoccupied critical habitat.

This argument, which Petitioner advances for the first

time in this Court, not only lacks textual support but

makes little sense ecologically. Critical habitat can include historically crucial but now degraded habitat, as

well as other areas that are essential to the conservation (i.e., recovery) of the species. In upholding the U.S.

Fish and Wildlife Service’s (Service)2 designation of

critical habitat for the dusky gopher frog, the Fifth Circuit did not expand the reach of the ESA; it ruled in

accordance with the Act’s plain language and conservation purpose and appropriately deferred to the Service’s scientific findings.

3. Petitioner’s attempt to invoke the doctrine of

constitutional avoidance is unfounded. This case turns

on a narrow issue of statutory interpretation and is not

a necessary or appropriate vehicle for broad pronouncements on constitutional questions or the balance of state and federal powers. Nonetheless, the

designation of critical habitat for the dusky gopher

frog was a valid exercise of federal power. Accordingly,

this Court should affirm the Fifth Circuit’s decision.

------------------------------------------------------------------

ARGUMENT

The Endangered Species Act has been remarkably

successful in preventing the extinction of species. Only

one percent of the more than 1,800 species listed in the

United States as endangered or threatened have been

declared extinct after receiving the protections of the

Act and many species are on the path to recovery. U.S.

The Department of the Interior’s U.S. Fish and Wildlife Service administers the Act for terrestrial and freshwater species

while the Department of Commerce’s National Marine Fisheries

Service administers the Act for marine species. The critical habitat provisions apply to both agencies and we therefore use Service

or Services throughout this brief to refer to their collective obligations under the Act.

Fish & Wildlife Serv., Delisted Species, https://ecos.

fws.gov/ecp0/reports/delisting-report (last visited July

2, 2018); Daniel M. Evans et al., Species Recovery in

the United States: Increasing the Effectiveness of the

Endangered Species Act, Issues in Ecology, Winter

2016, at 1. But despite significant efforts to prevent extinction, the loss of biodiversity, driven largely by habitat degradation and destruction, remains a rapidly

growing crisis. See, e.g., Stuart L. Pimm et al., The

Biodiversity of Species and Their Rates of Extinction,

Distribution, and Protection, 344 Science 987 (2014);

David Wilcove et al., Quantifying Threats to Imperiled

Species in the United States, 48 Am. Inst. Bio. Sciences

607 (1998); National Research Council, Science and the

Endangered Species Act 72 (1995), https://www.nap.

edu/read/4978/chapter/6#72 (“[T]here is no disagreement in the ecological literature about one fundamental relationship: sufficient loss of habitat will lead to

species extinction.”). Scientists estimate that by 2050,

10 percent of all terrestrial species will be “committed

to extinction.” Elizabeth Kolbert, The Sixth Extinction:

An Unnatural History 167–68 (2014); see also Daniel

A. Farber, Separated at Birth? Addressing the Twin

Crises of Biodiversity and Climate Change, 42 Ecology

L.Q. 841, 846 (2015) (noting that climate change will

exacerbate biodiversity loss).

Amici submit this brief to underscore the vital role

that designation of critical habitat plays in the ESA’s

comprehensive scheme to protect threatened and endangered species and the ecosystems on which they depend. Accordingly, this brief will focus on the benefits

of critical habitat for species and the narrow question

of statutory interpretation that Petitioner presents to

this Court: whether the ESA requires critical habitat

to be habitable by the species at the time of designation. Amici urge the Court not to graft onto the ESA a

requirement of current habitability for unoccupied areas. This extra-statutory requirement is fundamentally inconsistent with Congress’s decision to allow for

the designation of unoccupied areas that are biologically “essential” for species conservation. Such a rule

would undermine the conservation value of critical

habitat and make species recovery—the ESA’s ultimate goal—less likely.

Beyond this issue of statutory construction, which

Petitioner raises for the first time in this Court, Petitioner’s challenge amounts to no more than a gardenvariety disagreement with the views of an expert

agency entrusted by Congress to perform a highly technical task. The Service’s designation of Unit 1 as dusky

gopher frog critical habitat was based on a thorough

review of intact and restorable habitat areas. The Service designated this unoccupied critical habitat only

after independent peer reviewers determined that existing occupied habitat was not sufficient for recovery

and that the area contained unique and irreplaceable

features essential to the conservation of the species.

On such ecological questions, including what specific

habitat is essential for the frog’s recovery, this Court

has repeatedly instructed that courts owe the Service

a high level of deference. No persuasive, let alone

compelling basis exists for upsetting the Service’s expert judgment here.

This brief will not address whether the Service’s

decision not to exclude areas from critical habitat is

separately reviewable from the designation itself. Our

focus here is on the proper statutory interpretation of

“unoccupied critical habitat” and the deference due the

Service’s scientifically-grounded determinations.

Critical habitat is an integral part of the

ESA’s comprehensive program to conserve

imperiled species

A. Congress designed the ESA to address

the threats of habitat loss and degradation

When Congress passed the ESA in 1973 it was

acutely aware that stemming the loss of biodiversity

required more than protecting individual animals and

plants: it also required protecting habitat from destruction or adverse modification. Of the many threats

to America’s wildlife heritage, Congress recognized

that the “most significant has proven also to be the

most difficult to control: the destruction of critical habitat.” H.R. Rep. No. 93-412, at 4 (1973); see also Tenn.

Valley Auth. v. Hill, 437 U.S. at 179 (“Congress started

from the finding that ‘[t]he two major causes of extinction are hunting and destruction of natural habitat.’ Of

these twin threats, Congress was informed that the

greatest was destruction of natural habitats.”)

(quoting S. Rep. No. 93-307, at 2 (1973) as reprinted in

1973 U.S.C.C.A.N. 2989, 2990).3

In the 1978 amendments to the ESA, Congress

reemphasized that “[t]he loss of habitat for many species is universally cited as the major cause for the extinction of species worldwide.” H.R. Rep. No. 95-1625,

at 5 (1978). Indeed, in the lead-up to those amendments, Congress specifically stated that “if the protection of endangered and threatened species depends in

large measure on the preservation of the species’ habitat, then the ultimate effectiveness of the Endangered

Species Act will depend on the designation of critical

habitat.” H.R. Rep. No. 94-887, at 3 (1976).

To that end, the ESA’s purpose is not only to address actions directed at species themselves—such as

hunting and trade—but also to “provide a means

whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”

16 U.S.C. § 1531(b) (emphasis added). Conservation is

statutorily defined as “the use of all methods and

The legislative history demonstrates that Congress understood this relationship between species protection and habitat

loss. See, e.g., 119 Cong. Rec. 30,528 (1973) (statement of Rep. Lehman) (“The new law recognizes that the greatest threat to endangered animals has been man’s destruction of their habitat.”); see

also 119 Cong. Rec. 30,162 (1973) (statement of Rep. Sullivan)

(“For the most part, the principal threat to animals stems from

the destruction of their habitat.”). After the 1978 amendments,

one senator even said, “the designation of critical habitat is more

important than the designation of an endangered species itself.”

124 Cong. Rec. S21,575 (daily ed. July 19, 1978) (statement of Sen.

Garn).

procedures which are necessary to bring any endangered species or threatened species to the point at

which the measures provided pursuant to this chapter

are no longer necessary.” Id. § 1532(3). This conservation mandate covers the Act from nose to tail. As this

Court has recognized, the “plain intent of Congress” in

enacting the ESA “was to halt and reverse the trend

toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in

literally every section of the statute.” Tenn. Valley

Auth., 437 U.S. at 184.

The ESA establishes a framework for the conservation of imperiled species, with specific management

actions left to the scientific judgment of the appropriate Service. First, the Service determines whether a

species warrants listing as “threatened” or “endangered.” 16 U.S.C. § 1533(a)(1). In making this determination, the first factor the Service considers is “the

present or threatened destruction, modification, or curtailment of its habitat or range.” Id. § 1533(a)(1)(A).

Consistent with Congress’s emphasis on habitat

preservation, the Service must also at the time of listing and “to the maximum extent prudent and determinable” designate “any habitat of such species which

is then considered to be critical habitat.” Id.

§ 1533(a)(3)(A), (a)(3)(A)(i).

The ESA recognizes that critical habitat can be

occupied or unoccupied by the species at the time of

listing and provides separate definitions for each. Occupied critical habitat is defined as “the specific areas

within the geographical area occupied by the species,

at the time it is listed . . . on which are found those

physical or biological features (I) essential to the conservation of the species and (II) which may require

special management consideration or protection.” Id.

§ 1532(5)(A)(i) (emphasis added). By contrast, the definition of unoccupied critical habitat includes the “specific areas outside the geographical area occupied by

the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential

for the conservation of the species.” Id. § 1532(5)(A)(ii)

(emphasis added). Notably, Congress’s definition of unoccupied critical habitat specifically omits the requirement that such habitat possess the “physical or

biological features” essential to species conservation

and, instead, requires only that the Service make a

“determination . . . that such areas are essential for the

conservation [i.e., recovery] of the species.” Compare 16

U.S.C. § 1532(5)(A)(i) with 16 U.S.C. § 1532(5)(A)(ii).

For both occupied and unoccupied critical habitat, the

Service must make a species-specific determination

“on the basis of the best scientific data available and

after taking into consideration the economic impact,

the impact on national security, and any other relevant

impact of specifying any particular area as critical

habitat.” Id. § 1533(b)(2).

Once a species is listed, a series of substantive and

procedural requirements attach. While section 9 prohibits “take” of endangered species without prior authorization, id. § 1538(a)(1)(B),4 section 7(a)(1) imposes

Section 9’s prohibitions apply only to endangered species

but may be extended in whole or in part to threatened species

on federal agencies a substantive obligation to promote

the conservation of listed species. Id. § 1536(a)(1).

Moreover, section 7(a)(2) obligates federal agencies to

consult with the Service whenever they act, authorize,

or fund a project that may affect a listed species or its

designated critical habitat. Id. § 1536(a)(2). Through

consultation, federal agencies must ensure that their

actions will not “jeopardize the continued existence” of

a listed species or “result in the destruction or adverse

modification” of critical habitat. Id. § 1536(a)(2). This

consultation process is designed to lessen the impact

of federal or federally-permitted activities on species

and their critical habitats. In practice, consultation has

allowed most development projects to proceed with no

more than minor modifications.

Section 7 is particularly important for unoccupied

critical habitat because while such habitat may in fact

be indispensable to the species’ conservation, there is

no other statutory mechanism for protecting these areas. The Act’s take prohibition protects species from,

among other things, “harm,” id. § 1538, but the regulatory definition of “harm” only applies to habitat modification that actually kills or injures wildlife which is

unlikely to happen if the listed species is not present.

50 C.F.R. § 17.3; Babbitt v. Sweet Home Chapter of

Cmtys. for a Great Or., 515 U.S. 687 (1995) (requiring a

reasonable likelihood of harm to individual animals for

habitat modification to constitute take under the ESA).

pursuant to regulation. 16 U.S.C. § 1533(d). The U.S. Fish & Wildlife Service has enacted a blanket rule extending section 9 prohibitions to threatened species. 50 C.F.R. § 17.31(a).

By contrast, the proscription on federal agency actions

that may destroy or adversely modify critical habitat

protects designated areas regardless of whether an action will directly harm individual animals. Thus, critical habitat designation provides the only statutory

protection for areas that are unoccupied but necessary

for the expansion and recovery of the species.5

Congress’s determination that unoccupied habitat

may nonetheless be essential to conservation, even if

it is not habitable when designation occurs, makes

biological and practical sense. When a species with a

previously larger range has been reduced to a small

patch of presently suitable habitat by the “destruction

[or] modification . . . of its habitat,” 16 U.S.C.

§ 1533(a)(1)(A), recovery may necessarily require the

protection of both the dwindling areas where the species still occurs and other areas needed for its conservation, including historically occupied areas capable of

being restored and recolonized. For such species, designation of unoccupied critical habitat plays an indispensable role in their recovery.

B. Designating critical habitat promotes

species recovery

Critical habitat’s operative weight stems from

section 7’s consultation requirement. 16 U.S.C.

Even that protection is limited because it only extends to

discretionary actions authorized, funded, or carried out by federal

agencies. Nat’l Ass’n of Homebuilders v. Defenders of Wildlife, 551

U.S. 644, 666 (2007).

§ 1536(a)(2). For projects on federal lands or that require federal funding, approval, or implementation,

section 7 provides important substantive and procedural checks on actions affecting habitat that is essential to a species’ conservation. But designation also

generates valuable information that federal, state, local, and private landowners can use to help conserve

species. These benefits may be just as important as the

action-forcing provisions described above.

When critical habitat is designated on federal

lands, it can help prioritize section 7(a)(1) conservation

efforts. Under section 7(a)(1), all federal agencies must

“utilize their authorities in furtherance of the purposes

of [the ESA] by carrying out programs for the conservation of endangered species and threatened species.”

16 U.S.C. § 1536(a)(1). This obligation covers everything from recovery planning to direct restoration of

habitat on federal lands. Take, for example, the U.S.

Forest Service’s efforts to restore degraded unoccupied

critical habitat for the New Mexico meadow jumping

mouse. Unoccupied critical habitat for this species was

designated along riparian tracts degraded by years of

overgrazing. 81 Fed. Reg. 14,264, 14,267 (Mar. 16,

2016). Following designation, the Forest Service engaged with conservation partners and local ranchers to

install a series of cattle exclusion fences and alternative water sources that allowed these degraded areas

to return to their natural condition and once again host

the mouse. U.S. Forest Service, New Mexico Meadow

Jumping Mouse Habitat Improvement Projects on the

Agua Chiquita Grazing Allotment, https://www.fs.usda.gov/

project/?project=51273 (last visited July 2, 2018). Without critical habitat designation, it is unlikely that

these areas would have received the same priority.

Critical habitat designation also provides broad

notice to both federal agencies and the public of the location and importance of the particular areas that are

essential to species recovery. Listing the species alone

may not adequately convey this information. Federal

agencies and private landowners alike may be otherwise unaware of the importance of an area to a species’

recovery because even the most diligent survey of the

area may not reveal the listed species or the physical

or biological characteristics associated with its survival. Jack McDonald, Critical Habitat Designation

Under the Endangered Species Act: A Road to Recovery?, 28 Envtl. L. 671, 688-91 (1998) (discussing the notice benefits of designation). This is especially true for

migratory species and those that depend on ephemeral

habitats.

A prime example of this occurs in the glacial outwash prairies of western Washington, where four listed

subspecies of Mazama pocket gopher are found. 79 Fed.

Reg. 19,760, 19,772 (Apr. 9, 2014). These gophers spend

most of their lives underground, which makes observation extremely difficult. Id. That difficulty is compounded by the species’ tendency to shift its occupied

range from generation to generation. 79 Fed. Reg.

19,712, 19,715 (Apr. 9, 2014) (designating critical habitat) (“movements result in apparent changes of the occupancy status of a specific site over time, as juveniles

disperse and colonize new sites, or conversely, as territorial individuals die and specific sites become unoccupied”). If unoccupied areas were not protected by

critical habitat designation, the species’ protected habitat would be limited to the occupied range at the time

of listing, and subsequent generations would not have

sufficient protected habitat in which to disperse. Designation of critical habitat allows the Service to identify areas that are presently unoccupied or otherwise

appear to lack conservation value and highlights their

importance to the species.

Additionally, the information developed during

the designation process can help focus the efforts of

conservationists, states, and private landowners when

developing habitat conservation plans. Even where no

federal action is involved, these actors may elect to tailor their activities to avoid negatively affecting a sensitive area. See, e.g., Dashiell Farewell, Revitalizing

Critical Habitat: The Ninth Circuit’s Pro-Efficiency Approach, 46 Envtl. L. 653, 663 (2016) (“With more parties on notice the more likely it is that habitat will

receive the consideration and protection it deserves.”).

Designation can also help maximize the conservation value of land acquisition by allowing parties to

target those areas that would most benefit a species.

For example, after conservation groups expressed concern about development near one of the dusky gopher

frog’s last known breeding ponds, the real estate developers agreed to a land purchase that protected 170

acres of critical habitat for the species. See Press Release, Ctr. for Biological Diversity, Land Purchase

Protects Essential Mississippi Habitat for Endangered

Dusky Gopher Frog (May 14, 2015), https://www.

biologicaldiversity.org/news/press_releases/2015/duskygopher-frog-05-14-2015.html.

Perhaps most importantly, designating critical

habitat ensures that adequate focus is placed on species recovery and not just survival. Gifford Pinchot

Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059,

1070 (9th Cir. 2004) (requiring the Service to provide

for species recovery, not just survival, in designating

critical habitat). While other provisions of the Act protect species from direct harm, see 16 U.S.C. §§ 1536,

1538, or authorize the discretionary acquisition of

lands, see id. § 1534, only critical habitat mandates

that the Service determine precisely which areas are

essential to recovery. Id. §§ 1532(5), 1533(a)(3)(B). In

fact, of all the provisions in the ESA, critical habitat

designation may contribute the most to recovery because it is not limited just to those areas where a species lives at any given moment. This is particularly

true for species that have been driven to the point of

extinction by habitat loss.

Designation of unoccupied critical habitat is especially important for areas that were historically occupied or are scientifically determined to be essential for

expansion of a species’ range in the future. Michael J.

Bean & Melanie J. Rowland, The Evolution of National

Wildlife Law 261–62 (3d ed. 1997) (“Unoccupied critical habitat is habitat, the protection of which is needed

to improve the species’ status quo; that is, it is primarily needed for the recovery of the species.”). If the goal

is to recover species to a point where the Act’s protections are no longer needed, then logically “it will be

necessary to protect some of [a species’] former habitat

as well as that which it currently occupies.” Kalyani

Robbins, Recovery of an Endangered Provision: Untangling and Reviving Critical Habitat Under the Endangered Species Act, 58 Buff. L. Rev. 1095, 1105 (2010).

Critical habitat’s contribution to recovery will, of

course, vary on a species-by-species basis, but research

shows a correlation between critical habitat designation and positive trends in recovery status. See Martin

F.J. Taylor, The Effectiveness of the Endangered Species

Act: A Quantitative Analysis, 55 BioScience 360, 363

(2005). Other studies have shown that designation of

critical habitat is “correlated with increased effort to

protect species.” Amy N. Hagen & Karen E. Hodges,

Resolving Critical Habitat Designation Failures: Reconciling Law, Policy, and Biology, 20 Conservation

Biology 399, 400 (2006). Indeed, species with critical

habitat are also more likely to have recovery plans that

are up to date and being implemented than species

without critical habitat. Id. (“Critical habitat designation therefore helps populations improve, increases

knowledge about trends, and contributes to recovery

goals being met.”). Critical habitat is thus an important tool for recovering species, the ultimate goal

of the ESA. 16 U.S.C. §§ 1531(b) (purposes), 1532(3)

(definitions of “conserve,” “conserving,” and “conservation”).

C. Petitioner vastly overstates the economic

impacts of critical habitat designation

Contrary to the alarmist rhetoric adopted by Petitioner and supporting amici, critical habitat serves a

vital function in the ESA’s conservation scheme without imposing an undue burden on economic activity.

Designating critical habitat does not convert an area

into a park or preserve, nor does it require that humans cease all activity on the land. The consultation

requirement that attaches to critical habitat is directed solely at federal agency actions. 16 U.S.C.

§ 1536(a)(2). Thus, so long as no federal permit is required, and no federal funding needed, designating

critical habitat on private land has no effect on the

owner’s use of the property.

Even when a federal permit is required, empirical

evidence demonstrates that section 7 consultation almost never stops a proposed development in its tracks.

After examining every consultation recorded by the

U.S. Fish and Wildlife Service between January 2008

and April 2015, Malcom and Li determined that “no

project has been stopped or extensively altered as a result of FWS concluding either jeopardy or destruction/adverse modification of critical habitat.” Jacob

Malcom & Ya-Wei Li, Data Contradict Common Perceptions About a Controversial Provision of the U.S. Endangered Species Act, 112 PNAS 15844, 15845 (2015)

(reviewing all 88,920 USFWS consultations from January 2008 through April 2015). Most consultations

during this period were informal, but of the 6,829 formal consultations, only two resulted in a jeopardy

determination. Id. In only one of those two cases did

the Service find that the proposed action would destroy

or adversely modify critical habitat. Id. Despite that

finding, the proposed action was approved with the

adoption of reasonable and prudent alternatives that

minimized impacts to habitat. Id.6 As this research

shows, section 7 does not, in theory or practice, hamstring all private development. Rather it advances the

ESA’s recovery goals by striking a science-driven balance between conservation and economic activity.

On the record before the Court, Petitioner has not

sought, let alone been denied, federal permits to develop Unit 1, and it is undisputed that the critical habitat designation does not impede current silviculture

activities on the site. Pet. Br. at 42 (noting that they

could “forego [Clean Water Act] permitting or other

federal involvement and continue to operate Unit 1 as

a commercial forest”). Even if Petitioner must ultimately seek federal permits for the proposed development,7 it is unlikely that a section 7 consultation would

scuttle their plans. It is entirely possible that

While several earlier studies found higher rates of jeopardy

and adverse modification findings, such findings were still extremely rare. See, e.g., Dave Owen, Critical Habitat and the Challenge of Regulating Small Harms, 64 Fla. L. Rev. 141 (2012) (from

2005 to 2009, 7.2% of consultations related to U.S. Fish & Wildlife

Service administered fish species resulted in jeopardy); H.R. Rep.

No. 97-567, at 13 (1982) (House Report on 1982 ESA amendments

noting that only 1.8% of consultations resulted in jeopardy and

that of those only two projects were ultimately halted).

Here, ESA regulations are only implicated if there is a federal nexus, like a section 404 permit under the Clean Water Act,

33 U.S.C. §§ 1251 et seq. (1972).

residential development of the area could proceed

along with a habitat conservation plan to preserve the

rare ponds on the property and restore upland features

that are optimal for the frog’s lifecycle. Alternatively,

other private actors could purchase the property for

conservation purposes.8

We cannot stress enough: designating this area as

critical habitat is only the first step in a process to determine how it will contribute to the frog’s recovery. In

contrast with the lack of evidence supporting Petitioner’s speculative injuries, record evidence shows

that Unit 1 is essential to the conservation of the dusky

gopher frog because it is the last remaining area of the

species’ historic range that could still support the species in the future. 77 Fed. Reg. 35,118, 35,124 (June 12,

2012) (“the five ponds in Unit 1 provide breeding habitat that in its totality is not known to be present elsewhere within the historic range of the dusky gopher

frog”). Moreover, the breeding ponds cannot be replaced or restored once destroyed. Id. at 35,123 (noting

Judge Owen’s dissenting opinion makes much of Petitioner’s alleged opposition to restoration efforts on the property

and focuses on the remote likelihood that restoration would occur.

Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452,

487 (5th Cir. 2016) (Judge Owen dissenting). But the current willingness of any existing landowner to conserve or improve a property does not foreclose the Service from determining that a

particular area is essential to the species’ conservation—a determination that, under the statute, turns on biological facts rather

than landowner preference. The point of designating critical habitat is to identify and provide notice of the areas scientists believe

are essential to a species’ recovery before options for conservation

are foreclosed.

that years of effort to restore or recreate habitat of similar quality elsewhere have failed). Thus, Unit 1 provides the best chance of increasing the representation,

resiliency, and redundancy that are essential to the recovery of the dusky gopher frog.9 If the Service cannot

designate the last places on earth that the frog could

potentially breed as critical habitat, there is little hope

for the species.

II.

Imposing a temporal habitability requirement on unoccupied critical habitat is neither mandated by the ESA’s plain language

nor reconcilable with the Act’s conservation purpose

A. The ESA does not require that critical

habitat be habitable at the time of designation

Petitioner and their amici have seized on an extraordinarily broad dissent from the Fifth Circuit’s

denial of rehearing en banc to assert a new argument

that they themselves failed to present to either the

district court or the appellate panel below. Pet. Br. at

22–32; Markle Br. in Support of Pet. at 26–28. This argument, that unoccupied critical habitat must be habitable at the time of designation, conflicts with the

ESA’s plain language and would significantly diminish, if not eviscerate, the value of unoccupied critical

habitat for the conservation of habitat-limited species.

Evans, supra, at 6, 22 (describing the “3R’s” of species recovery).

The ESA defines unoccupied critical habitat as the

“specific areas” that the Service determines to be “essential for the conservation” of the species. 16 U.S.C.

§ 1532(5)(A)(ii). This definition focuses on whether an

area is essential for conservation, i.e., recovery, not

whether it could, as is, support the species. A requirement that critical habitat must be immediately occupiable at the time of designation has no basis in the

statutory language and would foreclose designation of

restorable areas, areas that shift into and out of habitability, and areas that the Service has determined to

be essential for species conservation because they provide the source of ecological benefits for occupied portions of the species’ range.

Petitioner’s effort to read a present habitability requirement into the statute is problematic in many respects. Most significantly, Congress did not create such

a requirement. In fact, it did the opposite. Again, the

statute defines occupied critical habitat as areas on

which “are found those physical or biological features”

that are “essential to the conservation of the species.”

Id. § 1532(5)(a)(i) (emphasis added). In the very next

subsection, Congress omitted any such present tense

requirement for unoccupied critical habitat, and instead required only a “determination by the Secretary

that such areas are essential for the conservation of

the species.” Id. § 1532(5)(A)(ii). It is axiomatic that

Congress acts intentionally when it “includes particular language in one section of a statute but omits it in

another section of the same Act.” Dean v. United States,

556 U.S. 568, 573 (2009). Applying that principle here

leads to the inescapable conclusion that Congress did

not require that unoccupied critical habitat must be

habitable by the species at the time of designation.

To avoid this straightforward reading of the statute, Petitioner relies heavily on a dictionary definition

of “habitat.” Pet. Br. at 23. But that definition gets Petitioner nowhere. Indeed, it circumvents another cardinal rule of statutory construction: dictionary

definitions only come into play when Congress itself

has not defined the term at issue. Stenberg v. Carhart,

530 U.S. 914, 942 (2000) (“When a statute includes an

explicit definition, we must follow that definition, even

if it varies from that term’s ordinary meaning.”). Here,

Congress defined unoccupied critical habitat in a manner that is irreconcilable with Petitioner’s interpretation. In the “Definition” section of the ESA, Congress

established what unoccupied critical habitat means.

That definition does not support any requirement that

the species must be able to exist in the “area” in question at the moment of designation.

Even if Congress had not already defined the relevant term, Petitioner’s argument would still fail. Petitioner defines habitat as “the place where a plant or

animal species naturally lives and grows” or “the kind

of site or region with respect to physical features . . .

naturally or normally preferred by a biological species.” Pet. Br. at 23 (citing Habitat, Webster’s Third

New Intl. Dictionary (1976)). To Petitioner, if a species

cannot currently live on a site, then it does not “naturally” live there, and that area cannot qualify as habitat. But such a reading fails to properly examine what

it means for a thing to be “natural.” “Natural” has

many definitions, among them “growing without human care,” “not cultivated,” and “closely resembling an

original: true to nature.” Natural, Webster’s Third New

Intl. Dictionary (1976). This implies a state prior to

significant human disturbance. When understood

properly, what “naturally lives and grows” on Unit 1

are not the loblolly pines that Petitioner cultivates but

the longleaf pine forests that could provide “food, shelter and protection” for the frog, 77 Fed. Reg. at 35,131.

The frog, after all, naturally lived there until at least

1965. Id. at 35,133.

This is not to say that critical habitat requires restoring all designated areas to pre-settlement conditions. It is only to say that restricting critical habitat

to unaltered, move-in ready parcels is at odds with not

only Congress’ chosen definition but the very purpose

of the statute itself. There is simply no reasonable basis for construing the meaning of “habitat” so narrowly

as to exclude, for example, historically occupied habitat

that has become degraded but is nonetheless vital for

species recovery efforts.

B. A temporal habitability requirement

would undermine the conservation value

of critical habitat

Petitioner’s proposed extra-textual requirement

ignores the reality of habitat modification, the very

force that has driven many species to the point of

extinction and which Congress sought to address by

passing the ESA. 16 U.S.C. § 1531(b). For many species,

recovery requires protecting more than limited parcels

of pristine habitat. It requires protecting remnants of

degraded lands that are necessary to the species’ conservation (i.e., recovery). That is why Congress left it

to the Service to ascertain which “specific areas” of unoccupied habitat are “essential for the conservation” of

species that have been listed as endangered or threatened. Determining which lands are essential to fulfilling the ESA’s recovery goals is a question for

science, not Webster’s dictionary.

By Petitioner’s standard, currently unoccupied

habitats that could be rendered suitable for occupation

with even minor restoration efforts could never qualify

for designation. This would be the case on federal

lands, leaving agencies without crucial information to

inform their 7(a)(1) conservation duty to promote the

recovery of species like the New Mexico meadow jumping mouse, see supra Section I.B., as well as on private

lands where landowners may be willing to help restore

critical habitat through voluntary conservation efforts.

See Rangewide Conservation Plan for Longleaf Pine,

America’s Longleaf Restoration Initiative (2009),

http://americaslongleaf.org/media/86/conservation_plan.pdf

(describing a plan to restore 8 million acres of longleaf

pine forest on private land by 2025).

A current habitability requirement could also preclude the Service from designating dynamic habitats

that cycle in and out of habitability. Some species require transitory or ephemeral habitats that may go

long periods without habitation. Many migratory

shorebirds, for example, rely on intertidal habitats

that are constantly changing and may be unsuitable

from one year to the next. See, e.g., Revised Designation of Critical Habitat for the Wintering Population of

the Piping Plover (Charadrius melodus) in North Carolina, 73 Fed. Reg. 62,816, 62,818 (Oct. 21, 2008) (noting that “designating specific locations of critical

habitat for the wintering piping plovers is difficult because the coastal areas they use are constantly changing due to storm surges, flood events, and other natural

geo-physical alterations of beaches and shoreline”).

Similarly, vernal pool species depend on ephemeral

ponds that may go long periods without exhibiting the

characteristics necessary for the species to thrive. Final Designation of Critical Habitat for Four Vernal

Pool Crustaceans and Eleven Vernal Pool Plants in

California and Southern Oregon, 70 Fed. Reg. 46,924,

46,925 (Aug. 11, 2005) (noting that “the duration of

ponding of vernal pools also varies, and in certain

years some pools may not fill at all”).

Just as harmful, Petitioner’s reading would foreclose the possibility of designating areas that are not

themselves habitable but which provide the physical

or biological features that are essential to the survival

of the species in occupied areas. Take, for example, the

upstream reaches of the Big Tujunga Creek that provide stream and sediment flows necessary for the survival of the Santa Ana sucker in downstream occupied

areas, see 75 Fed. Reg. 77,961, 77,973 (Dec. 14, 2010),

or the sandy desert north of Ramon Road in Riverside

County, California that provides the source of windblown sand essential to the conservation of the

Coachella Valley fringe-toed lizard in its range to

the south, see 45 Fed. Reg. 63,812, 63,818 (Sep. 25,

1980). Under Petitioner’s reading of the statute neither

area could be designated because they were not suitable for occupation by the species at the time of designation.10

A current habitability requirement would put species like these at risk of extinction. In her dissent from

denial of rehearing en banc, Judge Jones dismissed

this concern as a mere “consequence of a more precise

textual interpretation” but the Fifth Circuit panel ruling is far more faithful to the precise language used by

Congress to define unoccupied critical habitat. See supra Section II.A. Likewise, the Ninth Circuit expressly

rejected the argument that unoccupied but essential

upstream areas should be excluded from the Santa

Ana sucker designation because these areas were not

occupied (or occupiable) habitat. As the court held,

Protection of unoccupied areas like these is not, as Judge

Jones suggests, assured by section 7(a)(2)’s consultation requirement. While an action “does not have to occur on designated critical habitat to trigger section 7 consultation,” Markle Interests,

L.L.C. v. U.S. Fish & Wildlife Serv., 848 F.3d 635, 645 (5th Cir.

2017) (Judge Jones dissenting), where no critical habitat is designated, the presence of the species is typically what triggers consultation. See U.S. Fish & Wildlife Serv. & Nat’l Marine Fisheries

Serv., Endangered Species Consultation Handbook at 3-11,

https://www.fws.gov/endangered/esa-library/pdf/esa_section7_

handbook.pdf (“A biological assessment is required if listed species or critical habitat may be present in the action area.”) (last

visited July 2, 2018).

“[t]here is no support for this contention in the text of

the ESA or the implementing regulation, which requires the Service to show that the area is ‘essential,’

without further defining that term as habitable.” Bear

Valley Mutual Water Co. v. Jewell, 790 F.3d 977, 994

(9th Cir. 2015). Again, essentiality, not present habitability, is what is required by the plain terms of the Act.

Neither Petitioner nor the dissenting judges articulate when, if ever, unoccupied critical habitat would

be designated under their approach. Their counterintuitive and extra-textual approach would foreclose designation in numerous instances where areas are

essential to species’ conservation. Such a result is not

consistent with the plain language and purpose of the

ESA.

C. The Fifth Circuit’s ruling did not “vastly

expand the ESA”

In upholding the Service’s determination that

Unit 1 is essential to the conservation of the dusky gopher frog, the Fifth Circuit did not “vastly expand the

ESA,” Pet. Br. at 35, nor did the court render unoccupied habitat “easier to designate” than occupied habitat. Cf. Markle Interests, L.L.C., 848 F.3d at 646 (Judge

Jones dissenting). As discussed above, the text of the

statute provides clear limits on the Service’s authority

to designate critical habitat. Before designating unoccupied areas, the Service must determine, on the basis

of the best scientific data available, that a specific area

is in fact “essential for the conservation of the species,”

16 U.S.C. § 1532(5)(A) (emphasis added). Petitioner

and their amici unduly minimize this statutory requirement.

Judge Owen’s panel dissent turns to the dictionary definition of “essential” to argue that an area that

does not presently support a species’ population (and

which could require some degree of restoration to do

so) cannot possibly be essential. Markle Interests,

L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452, 483

(5th Cir. 2016) (Judge Owen dissenting). But this argument is unavailing. Black’s Law Dictionary defines “essential” as “1. Of, relating to, or involving the essence

or intrinsic nature of something. 2. Of the utmost importance; basic and necessary. 3. Having real existence,

actual.” Essential, Black’s Law Dictionary (10th ed.

2014). While Judge Owen emphasizes that Unit 1 “is

not ‘actual[ly]’ playing any part in the conservation of

the endangered frog species,” 827 F.3d at 483 (quoting

Black’s), this focus on the present value of habitat

misses an important textual nuance.

The ESA’s definition of “conservation” requires

consideration both of a species’ current survival needs

and what is necessary for its recovery. 16 U.S.C.

§ 1532(3); see also Sierra Club v. U.S. Fish & Wildlife

Serv., 245 F.3d 434, 441–42 (5th Cir. 2001) (“ ‘Conservation’ is a much broader concept than mere survival.”). The purpose of the ESA, after all, is to recover

species to the point that the Act’s protections are no

longer necessary. 16 U.S.C. § 1532(3). An area that is

presently unoccupied by a species may or may not provide a current benefit to the species. But it may

nonetheless be “of the utmost importance” and “essential to the conservation” of the species now and in the

future. Id. § 1532(5).

As this case illustrates, the Service must find, after taking into account economic and other factors,

that the best available scientific data supports the

proposition that a presently unoccupied area is “essential for the conservation of a species.” 16 U.S.C.

§ 1533(b)(2). Here, the Service designated Unit 1 as

unoccupied critical habitat only after making a scientific determination that existing occupied critical habitat was insufficient to conserve the frog. The Service’s

original proposal only included occupied sites within

Mississippi. See 75 Fed. Reg. 31,387, 31,395 (proposed

June 3, 2010). But scientific peer reviewers of the proposed rule “were united in their assessment that this

proposal was inadequate for the conservation of the

dusky gopher frog.” 77 Fed. Reg. at 35,123–24. Before

designating Unit 1, the Service surveyed recorded

sightings of the frog throughout its historic range and

followed up on those leads with detailed aerial and onthe-ground surveys of potential remnant habitat. Id. at

35,133 (noting that the five ponds on Unit 1 were of

“remarkable quality”). It also ruled out many other areas in both Alabama and Louisiana that lacked the

breeding ponds that are so important to the frog’s

lifecycle. Id. Finally, the Service weighed the economic

burden of designating Unit 1 against the conservation

benefit from such action and determined that it was

not appropriate to exclude these tracts. Id. at 35,140–

41.

There is simply no substance to the notion that the

Fifth Circuit’s decision expanded the ESA by making

it easier to designate unoccupied areas than occupied

ones.11 Congress adopted the definition of critical habitat and elected, for reasons that make perfect sense,

not to require that unoccupied areas contain the “physical or biological features essential to the conservation

of the species.” Congress knew how to articulate a

standard requiring the identification of specific features; it did so for occupied areas. But it chose different

criteria for designating unoccupied critical habitat. A

court cannot contradict the statute’s plain language

simply because it believes that unoccupied areas

should be more difficult to designate than occupied areas for policy reasons that are nowhere to be found in

the statute itself.

As the Fifth Circuit explained: “The Final Designation was based on the scientific expertise of the

agency’s biologists and outside gopher frog specialists.

If this scientific support were not in the record, the

Implicit in the arguments of Petitioner and their supporting amici is the notion that the Service could be over-designating

unoccupied areas. This fear is unfounded. As an empirical matter,

the Service rarely designates unoccupied critical habitat. Abbey

E. Camaclang et al., Current Practices in the Identification of Critical Habitat for Threatened Species, 29 Conservation Biology 482,

482–92 (2014) (“In addition, unoccupied habitat was included as

part of critical habitat for less than one third of the species we

considered [from 2003 to 2012].”); see also Stephanie Brauer, Note,

Arizona Cattle Growers’ Pyrrhic Victory for Critical Habitat, 38

Ecology L.Q. 369, 379 (2011) (“Despite its importance, unoccupied

habitat constitutes ‘a relatively small amount of habitat designated as critical habitat.’ ”).

designation could not stand.” Markle Interests, L.L.C.,

827 F.3d at 472. The Service’s science-based determination that Unit 1 is essential for the conservation of

the dusky gopher frog warrants judicial deference.

Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc.,

462 U.S. 87, 103 (1983) (“when examining this kind of

scientific determination . . . a reviewing court must

generally be at its most deferential”).

III. The Fifth Circuit’s ruling neither impinges

on the rights of states nor raises constitutional questions

Although this Court granted certiorari on only

narrow issues of statutory interpretation, Petitioner

and their supporting amici seek to import into the case

issues of states’ rights and constitutional concerns

through the doctrine of constitutional avoidance. These

issues, however, are far beyond the scope of what this

Court needs to, or should, address for the purposes of

this case. Zobrest v. Catalina Foothills School Dist., 509

U.S. 1, 8 (1993) (when a case can be decided on purely

statutory grounds the Court should follow a “prudential rule of avoiding constitutional questions”). Nonetheless, a brief rebuttal of these arguments is in order.

First, the assertion that protection of the nation’s

wildlife is merely a matter of state concern is belied by

more than a century of direct federal involvement in

wildlife conservation. Going back at least as far as the

Lacey Act of 1900, 16 U.S.C. §§ 3371–3378 and 18

U.S.C. § 42, and the Migratory Bird Treaty Act of 1918

(MBTA), 16 U.S.C. §§ 703–711, this Court has consistently upheld federal regulation in this area. See, e.g.,

Missouri v. Holland, 252 U.S. 416 (1920) (upholding the

MBTA); Andrus v. Allard, 444 U.S. 51, 63 n.19 (1979)

(“[the] assumption that the national commerce power

does not reach migratory wildlife is clearly flawed.”).

Circuit courts have unanimously followed the

holdings in those cases to reject arguments that the

ESA infringes on traditional state powers. As the

Fourth Circuit held: “[E]ndangered wildlife regulation

has not been an exclusive or primary state function”

but is instead “an appropriate and well-recognized

area of federal regulation.” Gibbs v. Babbitt, 214 F.3d

483, 500 (4th Cir. 2000). See also Rancho Viejo, L.L.C.

v. Norton, 323 F.3d 1062, 1078–79 (D.C. Cir. 2003) (“Far

from encroaching upon territory that has traditionally

been the domain of state and local government, the

ESA represents a national response to a specific problem of ‘truly national’ concern.”) (quoting Gibbs, 214

F.3d at 505). For that reason, the D.C. and Fourth Circuits have both concluded that the ESA is consistent

with principles of federalism: “[T]o sustain challenges

of this nature ‘would require courts to move abruptly

from preserving traditional state roles to dismantling

historic federal ones.’ ” Rancho Viejo, 323 F.3d at 1079–

80 (quoting Gibbs, 214 F.3d at 504).

Second, there is no serious constitutional question

here. “The substantial relationship between the ESA

and interstate commerce is patent.” People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 1006 (10th Cir. 2017), cert.

denied, 138 S. Ct. 649 (2018). When it enacted the ESA,

Congress determined that endangered and threatened

species are not only of “esthetic, ecological, educational, historical, recreational, and scientific value to

the Nation and its people,” 16 U.S.C. § 1531(a)(3), but

also contain a genetic heritage of “incalculable” value.

Tenn. Valley Auth., 437 U.S. at 178. Congress was concerned as well with “the unknown uses that endangered species might have and the unforeseeable place

such creatures may have in the chain of life on this

planet.” Id. at 178–79. See also Palila v. Haw. Dep’t of

Land & Natural Res., 471 F. Supp. 985, 995 (D. Haw.

1979), aff ’d, 639 F.2d 495 (9th Cir. 1981) (“[A] national

program to protect and improve the natural habitats

of endangered species preserves the possibilities of interstate commerce in these species and of interstate

movement of persons . . . who come to a state to observe

and study these species, that would otherwise be lost

by state inaction.”).

As all six circuits to address the issue have held,

Congress properly determined that endangered and

threatened species protection is economic and that protection of all imperiled species—no matter their current trade value or state of residence—is essential to

preserving America’s wildlife resources.12 Even if an

People for the Ethical Treatment of Property Owners v. U.S.

Fish & Wildlife Serv., 852 F.3d 990 (10th Cir. 2017) (upholding

ESA protection for the Utah prairie dog), cert. denied, 138 S. Ct.

649 (2018); San Luis & Delta-Mendota Water Auth. v. Salazar, 638

F.3d 1163 (9th Cir. 2011) (delta smelt), cert. denied sub nom. Orchards v. Salazar, 565 U.S. 1009 (2011); Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007) (Alabama

individual application of the ESA does not appear to

affect commerce directly, Congress has the power to

“ ‘regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation

of interstate commerce.’ ” Gonzales v. Raich, 545 U.S. 1,

25–27 (2005) (quoting United States v. Lopez, 514 U.S.

549, 561 (1995)). As this Court has held, “[w]here the

class of activities is regulated and that class is within

the reach of federal power the courts have no power ‘to

excise, as trivial, individual instances of the class.’ ”

Raich, 545 U.S. at 23 (quoting Perez v. United States,

402 U.S. 146, 154 (1971)).

Congress intended the ESA to protect the dusky

gopher frog and its critical habitat, which spans multiple states, as an essential part of the ESA’s comprehensive scheme to preserve the nation’s biodiversity

heritage. Even if it could be argued that the designation of Unit 1 does not directly affect interstate commerce, “that the regulation ensnares some purely

intrastate activity is of no moment.” Id. at 22. Courts

should not “excise individual components of that larger

scheme.” Id.

sturgeon), cert. denied, 552 U.S. 1097 (2008); GDF Realty Inv., Ltd.

v. Norton, 362 F.3d 286 (2004) (cave species), cert. denied, 545 U.S.

1114 (2005); Rancho Viejo, L.L.C. v. Norton, 323 F.3d 1062 (D.C.

Cir. 2003) (arroyo toad), cert. denied, 540 U.S. 1218 (2004); Gibbs

v. Babbitt, 214 F.3d 483 (4th Cir. 2000) (red wolf ), cert. denied sub

nom. Gibbs v. Norton, 531 U.S. 1145 (2001); Nat’l Ass’n of Home

Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (Delhi Sands

flower-loving fly), cert. denied, 524 U.S. 937 (1998).

Again, this Court need not engage these issues to

resolve this case but, if it should be necessary, the result is the same. The designation of unoccupied critical

habitat for the dusky gopher frog is well within the

reach of federal power.

------------------------------------------------------------------

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

JASON C. RYLANDER

Counsel of Record

STEVEN J. GOLDSTEIN

DEFENDERS OF WILDLIFE

1130 17th Street N.W.

Washington, D.C. 20036

(202) 682-9400

jrylander@defenders.org

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.