# Amicus Curiae Brief — Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 45 (2018) (No. 17-71)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

Recund
AND { AUG 14 2017
BRIEFS No. 17-71 =

Bn the Supreme Court of the United States

WEYERHAEUSER COMPANY,

Petitioner,
Vv.

UNITED STATES FISH AND WILDLIFE SERVICE, et ai.,
Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit

BRIEF OF THE AMERICAN FARM BUREAU FEDERATION,
THE NATIONAL ALLIANCE OF FOREST OWNERS,
AND THE NATIONAL MINING ASSOCIATION
AS AMICI CURIAE IN SUPPORT OF PETITIONER

WILLIAM R. MuRRAY Tyson C. Kape
NATIONAL ALLIANCE Counsel of Record

OF FoREST OWNERS JOSEPH B. NELSON
122 C Street, N.W. Van Ness Fe_pman, LLP
Suite 630 1050 Thomas Jefferson St., N.W.
Washington, D.C. 20001 Washington, D.C. 20007
(202) 747-0742 (202) 298-1800

tck@vnf.com

Counsel for Amici Curiae
(additional counsel listed on inside cover)

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001!

Additional Counsel}:

ELLEN STEEN

DANIELLE QUIST

AMERICAN FARM
BUREAU FEDERATION

600 Maryland Ave., S.W.

Suite 1000W
Washington, D.C. 20024
(202) 406-3600

KaTIE SWEENEY

ApAM ECKMAN

NATIONAL MINING
ASSOCIATION

101 Constitution Ave., N.W.

Washington, D.C. 20001

(202) 463-2600

TABLE OF AUTHORITISS ............----+:. Th
INTERESTS OF THE AMICI CURIAE .

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF

L.

I.

ET 5. occ os wae ee Whew ens’ 90h eee
I ess eS ere inte a. wial atne Stee om §

By Bestowing “Virtually Limitless” Power to
Designate Critical Habitat, the Fifth Circuit's
Decision Raises an Issue of Extraordinary Public

ee ere ee eee

A. Critical Habitat Designations Impose
Significant Economic and Regulatory

Impacts on Landowners Nationwide .......

B. Review Is Needed to Provide Uniform
Interpretation of the ESA’s Critical Habitat
Requirements ............-----+++++::

The Fifth Circuit Contravened Explicit
Statutory Restrictions on the Designation of
Unoccupied Critical Habitat ...............

A. The ESA’s Plain Language Limits Critical
Habitat to Specific Areas Within Existing
eS. <. De Une aban ee eae was bares

B. The Legislative History Demonstrates That
Congress Intended to Limit Critical Habitat
to a Subset of the Species’ Habitat .......

13

13

16

C. To Be Essential for the Conservation of the
Species, an Unoccupied Area Cannot Be
Based on the Presence of a Single, Non-
Determinative Feature................. 20

ED as Cae ae a see Bla eee ss

ill
TABLE OF AUTHORITIES
CASES

All. for Wild Rockies v. Lyder,
728 F. Supp. 2d 1126 (D. Mont. 2010) ....... 22

Ariz. Cattle Growers’ Ass’n v. Salazar,
606 F.3d 1160 (9th Cir. 2010) ........... 12, 22

Babbitt v. Sweet Home Chapter of Communities for
a Great Oregon,
es ns os poe we-0.bi8 08 08 Bok 9,11

Buffalo River Watershed All. v. Dep't of Agric.,
No. 4:13-cv-450-DPM, 2014 WL 6837005

(9° 3.3 & | | ere reer ee 7
Cape Hatteras Pres. All. v. U.S. Dep't of Intertor,
344 F. Supp. 2d 108 (D.D.C. 2004) ....... 12, 22

Ctr. for Biological Diversity v. Kelly,
93 F. Supp. 3d 1193 (D. Idaho 2015)......... 22

Fla. Key Deer v. Paulison,
522 F.3d 1133 (11th Cir. 2008) .............. 7

Home Builders Ass’n of N. Cal. v. U.S. Fish &
Wildlife Serv.,

616 F.3d 983 (9th Cir. 2010) ............ 12, 22
Lamie v. U.S. Trustee,

sg Erna a fare ar es 14
Markle Interests, L.L.C. v. U.S. Fish & Wildlife

Seruv.,

827 F.3d 452 (5th Cir. 2016) ........... passim

iV

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

Serv.,

848 F.3d 635 (5th Cir. 2017) ........... passim
Tenn. Valley Auth. v. Hill,

EE DY oy ov bwil bre nds hk A OO 17
TRW Inc. v. Andrews,

os wl hdr erica ee eee es 14, 15
United States v. Gonzales,

I 5s 5 bik Sin + vb bie cole oe OO 21
STATUTES AND REGULATIONS
os gb a akan ty oy So 14
Pa MEE sv bcc ee cece ere ees 4, 20
is fem pra ee 4, 20, 23
EE es sos bk be pte belek eaiee e's 3
ag errr rari ae 7
16 U.S.C. § 1I63B%laN3MAMi)............. 3,5,6, 14
oe rh eo kg brele iw 3
CEE, b's sy Sp -p b.o.0 0b so pee a )
ECT TET, Trees 5, 7,14
a .ole ss ove eeween wae. 7
te ey a er oe 7
Ce Se ee rere ree Tee eee 24

Endangered Species Act of 1973, Pub. L. No. 93-205,
ae ere ou ae Oe eee 16

Vv

Endangered & Threatened Wildlife and Plants:
Final Rulemaking to Designate Critical Habitat
for the Threatened Southern Distinct Population
Segment of North American Green Sturgeon,

74 Fed. Reg. 52,300 (Oct. 9, 2009). .......... 10

Endangered and Threatened Species; Critical
Habitat for the Endangered Carolina and South
Atlantic Distinct Population Segments of
Atlantic Sturgeon; Proposed Rule,

81 Fed. Reg. 36,078 (June 3, 2016) .......... 12

Endangered and Threatened Species; Designation
of Critical Habitat for the Gulf of Maine, New
York Bight, and Chesapeake Bay Distinct
Population Segments of Atlantic Sturgeon,
81 Fed. Reg. 35,701 (June 3, 2016) .......... 12

Endangered and Threatened Wildlife and Plants,
Designation of Critical Habitat for Dusky
Gopher Frog (Previously Mississippi Gopher
Frog); Final Rule and Proposed Rule,

77 Fed. Reg. 35,118 (June 12, 2012) ...... 4,8,9

Endangered and Threatened Wildlife and Plants;
Designation of Critical Habitat for the Western
Distinct Population Segment of the Yellow-
Billed Cuckoo; Proposed Rule,

79 Fed. Reg. 48,548 (Aug. 15, 2014) ......... 13

Endangered and Threatened Wildlife and Plants,
Designation of Revised Critical Habitat for the
Northern Spotted Owl; Final Rule,

77 Fed. Reg. 71,876 (Dec. 4, 2012) ........-. 10

vl

Endangered and Threatened Wildlife and Plants;
Revised Designation of Critical Habitat for the
Contiguous United States Distinct Population
Segment of the Canada Lynx and Revised
Distinct Population Segment Boundary; Final Rule,

79 Fed. Reg. 54,782 (Sept. 12, 2014) ......... 12

Endangered and Threatened Wildlife and Plants;
Revised Designation of Critical Habitat for Bull
Trout in the Coterminous United States; Final Rule,

75 Fed. Reg. 63,898 (Oct. 18, 2010). ......... 10

Interagency Cooperation-Endangered Species Act
of 1973,
43 Fed. Reg. 870 (Jan. 4, 1978) ..........--. 17

Listing Endangered and Threatened Species and
Designating Critical Habitat; Implementing
Changes to the Regulations for Designating
Critical Habitat; Final Rule,

81 Fed. Reg. 7,414 (Feb. 11, 2016) ....... 11, 24
LEGISLATIVE MATERIALS
124 Cong. Rec. 21,355 (1978) ........-...-545: 19
124 Cong. Rec. 21,575 (1978) ........--...555- 19
124 Cong. Rec. 38,131 (1978) ...........65-: 4,18
124 Cong. Rec. 38,154 (1978) ........-----. 17, 23
124 Cong. Rec. 38,665 (1978) ..........-.--- 6,19

H.R. Rep. No. 93-740 (1973)
(Endangered Species Act Amendments of 1973:

Report to Accompany S. 1983) .........----. 16

Vil

H.R. Rep. No. 95-1625 (1978)
(Endangered Species Act Amendments of 1978:

Report to Accompany H.R. 14104) ....... 18,

S. Rep. No. 95-874 (1978)
(Endangered Species Act Amendments of 1978:

Report to Accompany S. 2899)... 2.0.0.0... 19,

OTHER SOURCES

Merriam-Webster’s Collegiate Dictionary
SN I SOS ow ars Danttonels Peck oie ova ea

John M. Frywell, et al., Wildlife Ecology,
Conservation, & Management 427
SE a Ore ee es a oe eh oa Oe

FWS, Listed Species Summary, https://ecos.fws.gov/
ecp0/reports/box-score-report ..............

FWS, Threatened & Endangered Species Active
Critical Habitat Report, https://ecos.fws.gov/ecp/
report/table/critical-habitat.html ...........

Linnea S. Hall, et al., The Habitat Concept and a
Plea for Standard Terminology, 25(1) Wildlife
OG y Mmeee BGO GROOT) «ecw ee cesses.

Andrew J. Turner & Kerry L. McGrath, A Wider
View of the Impacts of Critical Habitat
Designation, 43 Envtl. L. Rep. News & Analysis
EDs «3c :ass chase leek +e) oe? ee

22

22

23

15

10

LO

15

1
INTERESTS OF THE AMICI CURIAE

The American Farm Bureau Federation (Farm
Bureau), the National Alliance of Forest Owners
(NAFO), and the National Mining Association (NMA)
respectfully submit this brief as amici curiae in support
of the Petitioner.’

The amici curiae have a substantial interest in this
case because the designation of private property as
critical habitat under the Endangered Species Act
(ESA) is a remarkably intrusive action that imposes
significant burdens on landowners and restricts their
ability to fully utilize their property. The U.S. Court of
Appeals for the Fifth Circuit endorsed an expansive
interpretation of critical habitat by upholding the
protection of an area that is not only unoccupied but
also unsuitable and uninhabitable by the species.
“(T]he ramifications of this decision for national land
use regulation .. . cannot be underestimated.” Markle
Interests, L.L.C. v. U.S. Fish & Wildlife Serv. , 848 F.3d
635, 637 (5th Cir. 2017) (Jones, J., dissenting).

The Farm Bureau is an _ independent, non-
governmental, voluntary general farm organization
with nearly 6 million member families in all 50 states

and Puerto Rico. Established in 1919, the Farm
Bureau’s primary function is to advance and promote

‘ No counsel for a party authored this brief in whole or in part, and
no counsel or party made a monetary contribution intended to fund
the preparation or submission of this brief. No person other than
amici curiae, its members, or its counsel made a monetary
contribution to its preparation or submission. Counsel of record
for all parties received notice at least ten days prior to the due date
of the amici curiae’s intent to file, and have provided either
blanket or individual consent to the filing of this brief.

9

the interests and betterment of farming and ranching;
the farming, ranching, and rural community; and the
individual families engaged in farming and ranching.
This effort involves protecting, promoting and
representing the business, economic, social and
educational interests of American farmers and
ranchers.

NAFO isa trade association that represents owners
and managers of over 80 million acres of private forests
‘n 47 states. NAFO was incorporated in March 2008,
and has been working aggressively since then to
sustain the ecological, economic, and social values of
forests, and to assure an abundance of healthy and
productive forest resources for present and future
generations.

NMA is the national trade association of the mining
industry. NMA has more than 300 members, including
those who produce most of the nation’s coal, metals,
industrial and agricultural minerals. The mining
industry has a broad impact on the national economy,
generating nearly 1.9 million jobs and contributing
$225 billion to the U.S. GDP and $45 billion in federal,
state, and local taxes each year. A core mission of
NMA is to promote practices that foster the
environmentally sound development and use of mineral
resources.

The amici curiae have members that are engaged in
timber, agricultural, and mining operations on
privately owned property. They will suffer economic
injury and deprivation of the full use and enjoyment of
their property due to the consequential restrictions on
land use activities arising from a designation of their
land as critical habitat. These restrictions and

3

negative effects are even more alarming when, as here,
the land is unoccupied by the relevant species and
lacks the features making it viable habitat.’

INTRODUCTION AND
SUMMARY OF ARGUMENT

Congress amended the ESA in 1978 to add a narrow
definition of critical habitat to restrain the prevailing
practice of designating expansive areas of land with no
regard to what was actually necessary for species
conservation. In doing so, Congress struck a balance
between the need to protect habitat for threatened and
endangered species and the need to ensure that the
exercise of regulatory powers affecting the economic
and productive use of land is wielded with focused
circumspection.

The application of the ESA is triggered when the
Secretary determines that a_ species is either
threatened or endangered. 16 U.S.C. § 1533(a)(1).
Concurrent with a listing decision, to the maximum
extent prudent and determinable, the Secretary shall
“designate any habitat of such species which is then
considered to be critical habitat.” Jd. § 1533(a)(3) AG)
(emphasis added). The Secretary must base any
designation upon “the best scientific data
available . . . after taking into consideration the
economic impact, ... and any other relevant impact, of
specifying any particular area as critical habitat.” Id.
§ 1533(b)(2).

‘The amici curiae also support the Petition for a Writ of Certiorari
in Markle Interests, L.L.C. v. U.S. Fish & Wildlife Service, No. 17-

4

Yongress did not envision the designation of critical
habitat “as far as the eyes can see and the mind can
conceive.” 124 Cong. Rec. 38,131 (1978). Rather,
through the statutory definition of “critical habitat,”
Congress established clear standards and statutory
boundaries. For occupied habitat, the Secretary may
designate “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 (1)
essential to the conservation of the species and (II)
which may require special management considerations
or protection.” 16 U.S.C. § 1532(5)A)Q). — For
unoccupied habitat, Congress imposed a heightened
standard—limiting designations to “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.” Jd. § 1532(5)A)(n).

In the decision below, the closely divided Fifth
Circuit panel upheld the designation of more than
1,500 acres of private forest land (Unit 1) in Louisiana
as unoccupied critical habitat for the dusky gopher
frog. Markle Interests, L.L.C. v. U.S. Fish & Wildlife
Serv., 827 F.3d 452, 459 (5th Cir. 2016). The U.S. Fish
and Wildlife Service (FWS) conceded that Unit 1 only
contains one of the three physical or biological features
that comprise habitat for the species (ephemeral ponds)
and that, in its present state, Unit 1 is “unsuitable as
habitat for dusky gopher frogs.” 77 Fed. Reg. 35,118,
35,129 (June 12, 2012). Furthermore, Unit 1 is located
across state lines, about 50 miles from existing
populations in Mississippi, and natural dispersal of the
frogs to the area is not possible. See id. at 35,130.

5

Even if the frogs were introduced into Unit 1, they
would not survive.

The Fifth Circuit wrongly held that “|t|here ts no
habitability requirement in the text of the ESA or the
implementing regulations.” Markle, 827 F.3d at 468.
The plain language of ESA Section 4 explicitly limits
critical habitat to a subset of “any habitat of such
species.” 16 U.S.C. § 1533(a)(3A\i) (emphasis added).
The Fifth Circuit’s decision condones the designation of
admittedly unsuitable and uninhabitable land based on
the mere presence of one physical feature that, alone,
cannot support the dusky gopher frog. ‘This decision
sets a remarkably low bar for the designation of critical
habitat—no requirement for existing habitat, no
requirement for suitability, and no _ reasonable
expectation that the area will be used for the
conservation of the species. The Fifth Circuit destroys
the statutory distinction between occupied and
unoccupied critical habitat and contravenes
Congressional intent by granting the Secretary
“virtually limitless” power to designate critical habitat.
Markle, 848 F.3d at 651 (Jones, J., dissenting).

If left unrestrained by this Court, the Fifth Circuit's
decision has nationwide implications. A _ private
property owner is barred from obtaining any
discretionary federal permits, authorizations, funding,
or other agency actions without first being subject to a
review to ensure that there will be no destruction or
adverse modification of critical habitat. This
“consultation” requirement imposes a_ federal
management overlay upon private lands with
significant regulatory and economic ramifications

under the ESA. See 16 U.S.C. § 1536(a)(2). Congress

6

recognized these implications in 1978 and crafted an
“extremely narrow definition of critical habitat” that
imposed statutory safeguards to restrain the overbroad
assertion of federal regulatory power. 124 Cong. Rec.
38,665 (1978). Review by this Court is necessary to
restore the designation of critical habitat to the bounds
that Congress intended and explicitly delineated.

ARGUMENT

l. By Bestowing “Virtually Limitless” Power to
Designate Critical Habitat, the Fifth Circuit’s
Decision Raises an Issue of Extraordinary
Public Importance

This case presents the central legal issue in
unmistakably clear statutory terms—does the use of
“any habitat . .. which is then considered to be critical
habitat” impose a_ statutory limitation on the
designation of critical habitat? 16 U.S.C.
§ 1533(aX3) Ai) (emphasis added). The Fifth Circuit
answered this question in the negative, holding that
“|t]here is no habitability requirement in the text of the
ESA.” Markle, 827 F.3d at 468. Under this
interpretation, the FWS would have unfettered
discretion to designate wide swaths of unoccupied
lands or waters as “critical habitat” on the mere hope
that somehow, some day, the area will transform into
actual habitat for the species. There are more than
1,650 species currently listed as threatened or
endangered within the United States, with many
having actual or historic ranges that encompass
multiple states (and federal circuit court boundaries).
The nationwide ramifications of such an expansive
interpretation warrant this Court’s acceptance of the
petitions for writ of certiorari to resolve whether the

7

Fifth Circuit’s decision can be _ reconciled with
Congress’s clear statutory directive.

A. Critical Habitat Designations Impose
Significant Economic and Regulatory
Impacts on Landowners Nationwide

The listing of a species as threatened or endangered
triggers a panoply of additional protections under the
ESA. First is the obligation of the Secretary to
designate critical habitat. 16 U.S.C. § 1533(a\(3)(A). In
turn, Section 7 of the ESA requires each federal agency
to consult with the FWS or National Marine Fisheries
Service (NMFS) (collectively, the Services) on any
action authorized, funded, or carried out that may
affect critical habitat.” 16 U.S.C. § 1536(a)(2). The
scope of federal agency actions that trigger consultation
continues to expand rapidly and includes, for example,
the provision of flood insurance and federal loan
guarantees. See Fla. Key Deer v. Paulison, 522 F.3d
1133, 1144 (11th Cir. 2008); Buffalo River Watershed
All. v. Dep't of Agric., No. 4:13-cv-450-DPM, 2014 WL
6837005, at *5 (E.D. Ark. Dec. 2, 2014). During
consultation, if FWS or NMFS concludes that the
action will destroy or adversely modify critical habitat,
then a reasonable and prudent alternative (RPA) to the
proposed action is developed to avoid the destruction or
adverse modification. 16 U.S.C. § 1536(b)(4)(A). A
private party applicant or partner to the federal agency
action must typically implement the RPA or be subject
to denial of its application or project.

* The relevant regulations define “action” broadly to include the
“granting of licenses, contracts, leases, easements, right-of-way,
permits, or grants-in-aid” or “actions directly or indirectly causing
modifications to the land, water, or air.” 50 C.F_R. § 402.02 (2016).

These Section 7 consultations impose
“(clonsiderable regulatory burdens and corresponding
economic costs [that] are borne by landowners,
companies, state and local governments, and other
entities as a result of critical habitat designation.”
Andrew J. Turner & Kerry L. McGrath, A Wider View
of the Impacts of Critical Habitat Designation, 43
Envtl. L. Rep. News & Analysis 10,678, 10,680 (2013).
There are significant costs associated with conducting
biological surveys and assessments—including multiple
site visits, hiring of technical experts, and subsequent
analyses—that can reach hundreds of thousands of
dollars. Compliance costs for measures to avoid or
minimize the effects of the proposed action on
designated critical habitat areas can be crippling. The
consultation process itself also has economic impacts
because it “often takes months or years, significantly
delaying projects and _ resulting in substantial
additional project costs, if not destroying the projects’
economic viability.” Jd. at 10,681. Where the federal
action authorizes some activity on private land, these
costs are borne by the private landowner, not by the
federal agency.

The impacts of a critical habitat designation cannot
be overstated. Pursuant to its authority under ESA
Section 7, during consultation on a requested federal
permit, FWS could recommend that no development
occur on Unit 1 which would result in $34 million of
lost economic opportunity. 77 Fed. Reg. at 35,141. But
Unit 1 is concededly “unsuitable as habitat,” and is
uninhabitable by the dusky gopher frog. /d. at 35,129
& 35,132-33. The only way that Unit 1 could benefit
the species is if the landowners engaged in large-scale
habitat transformation and the frog was forcibly

9

relocated there—something that the ESA cannot
require.* 77 Fed. Reg. at 35,123 (“property owners [not
required| to undertake affirmative actions to promote
the recovery of the listed species”).

The specter created by this broad interpretation of
what qualifies as critical habitat is unremittingly
chilling in its implications for ongoing commercial
activities on private property. A critical habitat
designation based on a single physical or biological
feature in an area that is unoccupied by the species
could freeze the operations of that property in
perpetuity. The fact that such restrictions are only
triggered by a discretionary federal agency action
subject to Section 7 consultation adds no comfort. The
nexus between federal agency actions and private
commercial operations is exceedingly broad, and
includes Clean Water Act permitting, land
management plans by the Forest Service and Bureau
of Land Management, financial assistance and other
programs from the National Resources Conservation
Service, Small Business Administration loan
guarantees, Federal Emergency Management Agency
flood insurance, and other Army Corps of Engineers
permits.

* Congress included other authorities in the ESA to allow the
Secretary to address this circumstance. 16 U.S.C. § 1534(a)(2)
(authorizing the Secretary “to acquire by purchase, donation, or
otherwise, lands, waters, or interest therein” to conserve fish,
wildlife, and plants); Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 515 U.S. 687, 703 (1995) (“The
Secretary may also find the § 5 authority useful for preventing
modification of land that is not yet but may in the future become
habitat for an endangered or threatened species.”) (emphasis
added).

10

These impacts are not unique to Unit 1, but are
occurring nationwide. For example, the government
estimated that the designation of all potential critical
habitat for the green sturgeon along the West Coast
would have an annual economic impact of up to $578
million and affect a variety of activities, including
timber sales, irrigation diversions and water
conveyance, and other land management actions. 74
Fed. Reg. 52,300, 52,300 & 52,341 (Oct. 9, 2009). The
designation of critical habitat for the bull trout is
expected to have incremental impacts of $56.3 to $80.9
million over 20 years, and would impact water
diversions, timber harvests, livestock grazing, and
other floodplain activities. 75 Fed. Reg. 63,898, 63,920
& 63,943-44 (Oct. 18, 2010). The designation of critical
habitat for the northern spotted owl could have up to a
$6.4 million annual impact due to a decline in timber
harvest volumes on federal lands. 77 Fed. Reg. 71,876,
71,946 (Dec. 4, 2012).

The designation of critical habitat, and its attendant
regulatory and economic impacts, will become more
significant in the future. There are currently more
than 1,650 species listed in the United States— with
listings in all 50 States and the District of
Columbia—but only 742 species have critical habitat.”
FWS has pending listing decisions on more than a
hundred species that require resolution and, if listed,
the designation of critical habitat. For those species
without critical habitat, the Services have stated that

°FWS, Listed Species Summary, https://ecos.fws.gov/ecp0/reports/
box-score-report (last visited Aug. 14, 2017); FWS, Threatened &
Endangered Species Active Critical Habitat Report,
https://ecos.fws.gov/ecp/report/table/critical-habitat. htm! (last
visited Aug. 14, 2017).

1]

future designations “will likely increasingly use the
authority to designate specific areas outside the
geographical area occupied by the species at the time of
listing.” 81 Fed. Reg. 7,414, 7,435 (Feb. 11, 2016).

As recognized by this Court, an over-expansive
interpretation of the ESA “imposes unfairness to the
point of financial ruin—not just upon the rich, but upon
the simplest farmer who finds his land conscripted to
national zoological use.” Sweet Home, 515 U.S. at 714
(Scalia, J., dissenting). The issue of whether critical
habitat is limited to habitat of the species must be
resolved because it directly affects how landowners will
manage their private lands, dictates what regulatory
requirements will apply, imposes substantial economic
costs and, sometimes, results in the outright rejection
or cessation of ongoing activities.

B. Review Is Needed to Provide Uniform
Interpretation of the ESA’s Critical Habitat
Requirements

This case emphasizes the compelling need for a
definitive interpretation of what constitutes critical
habitat to ensure consistent implementation
nationwide. In recent years, there has been an
increasing trend of geographically expansive critical
habitat designations. These designated areas span
multiple States and will be subject to inconsistent
standards depending upon which lower court has
jurisdiction.

12

For example, FWS recently designated 38,954
square miles of critical habitat for the Canada lynx. 79
Fed. Reg. 54,782, 54,782 (Sept. 12, 2014). The
designation includes areas of six states in various
geographic regions of the United States (Idaho, Maine,
Minnesota, Montana, Washington, and Wyoming).°
Similarly, NMFS has proposed to designate 4,254 miles
of critical habitat for the Atlantic sturgeon. See 81 Fed.
Reg. 35,701, 35,701 (June 3, 2016); 81 Fed. Reg. 36,078,
36,078 (June 3, 2016). The designation would include
portions of 28 rivers from Maine to Florida, along with
unoccupied habitat upstream of currently impassable
dams on several of these river systems.’

Until the Fifth Circuit’s decision, courts have
unanimously found that the designation of unoccupied
habitat is a “more onerous procedure” and a “more
demanding standard” than the designation of occupied
habitat. E.g., Ariz. Cattle Growers’ Ass’n v. Salazar,
606 F.3d 1160, 1163 (9th Cir. 2010); Home Builders
Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d
983, 990 (9th Cir. 2010); Cape Hatteras Pres. All. v.
U.S. Dep't of Interior, 344 F. Supp. 2d 108, 125 (D.D.C.
2004) (“Designation of unoccupied land is a more
extraordinary event [than] designation of occupied
lands.”). The Fifth Circuit drastically diverged from
these decisions by making it less difficult to designate
unoccupied areas as critical habitat, Markle, 848 F.3d

° The designation includes areas that fall within the jurisdiction of
the U.S. Courts of Appeals for the First, Eighth, Ninth, and Tenth

Circuits.

‘The designation includes areas that fall within the jurisdiction of
the U.S. Courts of Appeals for the First, Second, Third, Fourth,
and Eleventh Circuits.

13

at 646 (Jones, J., dissenting), and created considerable
uncertainty regarding the procedures and findings the
Secretary must make regarding a designation of critical
habitat.”

Given the Services’ increasing reliance upon
unoccupied areas to provide for the conservation of
listed species, there is an urgent need for this Court to
provide a uniform interpretation of the applicable
statutory requirements governing the designation of
critical habitat.

Il. The Fifth Circuit Contravened Explicit
Statutory Restrictions on the Designation of
Unoccupied Critical Habitat

A. The ESA’s Plain Language Limits Critical
Habitat to Specific Areas Within Existing
Habitat

The decision below gives the Secretary authority to
designate almost any land or waterbody within the
United States as critical habitat for an ESA-listed
species, even in places where the species could not
currently survive. As the Fifth Circuit erroneously
held, “[tlhere is no habitability requirement in the text
of the ESA or the implementing regulations,” and the
imposition of a habitability requirement would impose
an “extra-textual limit on the designation of unoccupied
land.” Markle, 827 F.3d at 468 (emphasis added). This

* In 2014, FWS proposed to designate critical habitat for the
yellow-billed cuckoo. 79 Fed. Reg. 48,548 (Aug. 15, 2014). The
proposed designation includes areas in Arizona, California,
Colorado, Idaho, Nevada, New Mexico, Texas, Utah, and Wyoming
thereby directly implicating the split of authority between the
Fifth and Ninth Circuits.

14

conclusion contravenes the ESA’s explicit statutory
requirements.

The plain language of Section 4 clearly delineates
“critical habitat” as a subset of “habitat.” The
Secretary can only “designate any habitat of such
species which is then considered to be critical habitat.”
16 U.S.C. § 1533(a)(3)(A)G) (emphasis added). Thus,
“lwlhatever is ‘critical habitat,’ according to this
operative provision, must first be ‘any habitat of such
species." Markle, 848 F.3d at 640 (Jones, J.,
dissenting). This “clear habitability requirement”
dictates the scope of the narrower designation of
occupied and unoccupied areas as critical habitat for a
species.

This Court has emphasized that “[t]he starting
point in discerning congressional intent is the existing
statutory text.” Lamie v. U.S. Trustee, 540 U.S. 526,
534 (2004). And, “when the statute’s language is plain,
the sole function of the courts—at least where the
disposition required by the text is not absurd—is to
enforce it according to its terms.” Jd. As the operative
text in the ESA, the use of “habitat” in Section 4 must
be construed to have meaning. FE.g., TRW Inc. v.

° Other provisions indicate that Congress explicitly focused on
conservation of species’ habitat. F.g., 16 U.S.C. § 1531(b) (“The
purposes of this chapter are to provide a means whereby the
ecosystems upon which endangered and threatened species depend
may be conserved, . . . .”) (emphasis added); 16 U.S.C. § 1536(a\(2)
(“Each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency ... is not likely to . . . result
in the destruction or adverse modification of habitat of such
species which is determined by the Secretary . . . to be
critical .. . .”) (emphasis added).

15

Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal
principle of statutory construction that a statute ought,
upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.”) (internal quotation
marks and citation omitted).

Properly interpreted, critical habitat can only be
designated in areas that are currently habitat for the
species. While not defined in the ESA, “habitat” is

commonly understood to be:

the resources and conditions present in an area
that produce occupancy—including survival and
reproduction—by a given organism. Habitat is
organism-specific; it relates the presence of a
species, population, or individual (animal or
plant) to an area’s physical and _ biological
characteristics. Habitat implies more than
vegetation or vegetation structure; it is the sum
of the specific resources that are needed by
organisms. Wherever an organism is provided
with resources that allow it to survive, that is
habitat.

Linnea 8. Hall, et al., The Habitat Concept and a Plea
for Standard Terminology, 25(1) Wildlife Soc’y Bulletin
173, 175 (1997); John M. Frywell, et al., Wildlife
Ecology, Conservation, & Mgmt. 427 (3d ed. 2014) (“The
place where an animal or plant normally lives, often
characterized by a dominant plant form or physical
characteristic (e.g. soil habitat, forest habitat).”). For
areas that are not currently occupied, this habitability
requirement ensures that the application of the ESA
does not create illogical results. As in the present case,
it is axiomatic that an area where the dusky gopher

16

frog cannot survive (even if relocated there) cannot
provide a conservation benefit to the species. By
divorcing “habitat” from “critical,” the Fifth Circuit’s
reasoning allows almost any area to be designated as
critical habitat with no restrictions on scope or the
attendant regulatory impositions on _ affected
landowners. This is contrary to the explicit statutory
safeguards that Congress provided.

B. The Legislative History Demonstrates That
Congress Intended to Limit Critical
Habitat to a Subset of the Species’ Habitat

As enacted in 1973, the ESA did not contain a
definition of critical habitat or specify how it was to be
designated.” In 1978, the Services promulgated
regulations that defined “critical habitat” as:

any air, land, or water area... and constituent
elements thereof, the loss of which would
appreciably decrease the likelihood of the
survival and recovery of a listed species or a
distinct segment of its population. . . . Critical
habitat may represent any portion of the present

The only reference to critical habitat in the 1973 ESA was the
prohibition on federal agencies taking action that “jeopardize the
continued existence of such endangered species and threatened
species or result in the destruction or modification of habitat of
such species which is determined by the Secretary . . . to be
critical.” Endangered Species Act of 1973, Pub. L. No. 93-205 § 7,
87 Stat. 884,892. Congress intended that critical habitat would be
acquired and protected pursuant to ESA Section 5. /d. § 5, 87 Stat.
889; H.R. Rep. No. 93-740, at 25 (1973) (“Any effective program for
the conservation of endangered species demands that there be
adequate authority vested in the program managers to acquire
habitat which is critical to the survival of those species.”)
(emphasis added).

17

habitat of a listed species and may_ include
additional areas for reasonable population
expansion.

43 Fed. Reg. 870, 874-75 (Jan. 4, 1978) (emphasis
added). Shortly thereafter, this Court enjoined the
construction of the Tellico Dam to protect the snail
darter and prevent the destruction of its critical
habitat. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184
(1978) (“t]he plain intent of Congress in enacting this
statute was to halt and reverse the trend toward
species extinction, whatever the cost.”). In response to
these events, and the significant economic implications,
Congress amended the ESA to explicitly define critical
habitat and limit the scope of such designations.

Congress's efforts demonstrate a clear intention
that critical habitat designations are limited to areas
that are habitable by the species and that unoccupied
habitat should only be designated sparingly based upon
heightened criteria. For example, House Bill 14104
defined unoccupied critical habitat as:

specific areas periodically inhabited by the
species which are outside the geographic area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of
this Act (other than any marginal habitat the
species may be inhabiting because of pioneering
efforts or population stress), upon a
determination by the Secretary at the time it is
listed that such areas are essential for the
conservation of the specics.

124 Cong. Rec. 38,154 (1978) (emphasis added). The
House Committee on Merchant Marine and Fisheries

18

noted that efforts to define critical habitat were driven
by the concern that “the existing regulatory definition
could conceivably lead to the designation of virtually all
of the habitat of a listed species as its critical
habitat.”"’ H.R. Rep. No. 95-1625, at 25 (1978)
(emphasis added). Instead, the Committee directed the
Secretary to “be exceedingly circumspect in the
designation of critical habitat outside the presently
occupied area of the species.” Jd. at 18 (emphasis
added).

The corresponding Senate Bill 2899 also included a
definition of unoccupied critical habitat, which limited
it to:

specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of
this act, into which the species can be expected
to expand naturally upon a determination by the
Secretary at the time it is listed, that such areas
ure essential for the conservation of the specics.

'' During floor debate on the House Bill, Representative Bowen
stated that “I believe the majority of the House is in agreement on
that, that the Office of Endangered Species has gone too far in just
designating territory as far as the eyes can see and the mind can
conceive. What we want that office to do is make a very careful
analysis of what is actually needed for survival of this species.”
124 Cong. Rec. 38,131 (1978) (emphasis added).

19

124 Cong. Rec. 21,355 (1978) (emphasis added).’” For
unoccupied areas, the Senate Committee on
Environment and Public Works stated that “|t|here
seems to be little or no reason to give exactly the same
status to lands needed for population expansion as is
given to those lands which are critical to a species|’|
continued survival.””’ S. Rep. No. 95-874, at 10 (1978)
(emphasis added).

The final bill passed by Congress included “la|n
extremely narrow definition of critical habitat,
virtually identical to the definition passed by the
House.” 124 Cong. Rec. 38,665. That definition
remains in effect today. The legislative history clearly
demonstrates that Congress was focused on habitat of
species which could then be designated as either
occupied or unoccupied critical habitat if the area
satisfied the relevant definitional criteria. Markle, 848
F.3d at 642 n.4 (Jones, J., dissenting) (“uniform
awareness in Congress that a species’ critical habitat
was a subset of the species’ habitat”). Contrary to the

' Regarding his amendment, Senator McClure explained that “this
is in response to the difficulty of how large an area should there be

established and if that species then expands beyond that arca
must humans then be displaced in that area.” /d.

‘* In explaining the role of critical habitat, Senator Garn stated
that “[w]hen a Federal land manager begins consideration of a
project, or an application for a permit, it is essential that he know,
not only of the existence of an endangered species, but also of the
extent and nature of the habitat that is critical to the continued
existence of that species. Unless he knows the location of the
specific sites on which the endangered species depends, he may
irrevocably commit Federal resources, or permit the commitment
of private resources to the detriment of the species in question.”
124 Cong. Rec. 21,575 (1978) (emphasis added).

20

Fifth Circuit’s conclusion, this habitability requirement
was understood by Congress at the outset and
incorporated into the operative provisions of the ESA.

C. To Be Essential for the Conservation of the
Species, an Unoccupied Area Cannot Be
Based on the Presence of a Single, Non-
Determinative Feature

The Fifth Circuit found that “only occupied habitat
must contain all of the relevant [physical or biological
features},” and upheld the designation of the
unoccupied Unit 1 despite it only containing one of the
three features that are essential to the conservation of
the species. Markle, 827 F.3d at 468 & 472 n.20. The
decision illogically establishes that the same
conditions—a lack of all relevant physica! or biological
features—can justify the designation of an unoccupied
area, but not an occupied area, as critical habitat. This
is contrary to Congressional intent and erroneously
lowers the bar for designating unoccupied critical
habitat.

The ESA, its legislative history, and co::rt precedent
all unquestionably demonstrate that “an unoccupied
critical habitat designation was intended to be different
from and more demanding than an occupied critical
habitat designation.” Markle, 848 F.3d at 648 (Jones,
J., dissenting). In defining critical habitat, Congress
explicitly distinguished between occupied and
unoccupied habitat. Occupied habitat requires the
presence of “features [that are] essential to the
conservation of the species.” 16 U.S.C. § 1532(5A)(i)
(emphasis added). Conversely, unoccupied habitat
requires “specific areas . . . [that] are essential to the
conservation of the species.” /d. § 1532(5)(A)(ii)

21

(emphasis added). From a biological perspective, the
use of “features” for occupied habitat and “areas” for
unoccupied habitat is inherently logical. An already
occupied area is, by definition, habitat for the species,
so a focus on physical or biological features ensures
that the critical components of that habitat are
identified. Because unoccupied areas may or may not
have habitat, the analysis must expand beyond mere
features to consider the habitability of the area as a
whole, otherwise the designation would provide no
conservation benefit to the species.

The use of these disparate statutory
terms—‘“features” versus “areas”—clearly connotes that
different standards apply to the designation of occupied
and unoccupied habitat. United States v. Gonzales, 520
U.S. 1, 5 (1997) (“Where Congress includes particular
language in one section of a statute but omits it in
another section of the same Act, it is generally
presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion”)
(citation omitted). To give these terms independent
meaning, the designation of unoccupied habitat must
require more than the presence of a single feature.

Disregarding this statutory construct, the Fifth
Circuit contradicted all relevant precedent by making
“it easier to designate as critical habitat the land on
which the species cannot survive than that which is
occupied by the species.” Markle, 848 F.3d at 646
(Jones, J., dissenting). In contrast, the Ninth Circuit
stated:

The statute thus differentiates between
“occupied” and “unoccupied” areas, imposing a
more onerous procedure on the designation of

22

unoccupied areas by requiring the Secretary to
make a showing that unoccupied areas are
essential for the conservation of the species.

Ariz. Cattle Growers’, 606 F.3d at 1163; see also Home
Builders, 616 F.3d at 990 (designation of unoccupied
habitat “is a more demanding standard than that of
occupied critical habitat”). The district courts have also
concluded that the designation of unoccupied habitat
requires more than the standard for designating
occupied areas. E.g., Cape Hatteras, 344 F. Supp. 2d at
119 (“with unoccupied areas, it is not enough that the
area’s features be essential to conservation, the area
itself must be essential”); All. for Wild Rockies v. Lyder,
728 F. Supp. 2d 1126, 1138 (D. Mont. 2010) (“ESA
imposes a more onerous procedure on the designation
of unoccupied areas”); Ctr. for Biological Diversity v.
Kelly, 93 F. Supp. 3d 1193, 1202 (D. Idaho 2015) (“more
demanding [standard] than that of unoccupied
habitat”). The Fifth Circuit’s anomalous decision is
contrary to established case law, and _ subverts
Congressional intent and the ESA statutory criteria
which impose a_ heightened standard for the
designation of unoccupied critical habitat.""

'* In adopting the definition of “critical habitat” Congress sought
to constrain the ability of the Secretary to designate unoccupied
habitat. The Senate found that there is “little or no reason to give
exactly the same status to lands needed for population expansion
as is given to those lands which are critical to a species[‘] continued
survival.” S. Rep. No. 95-874 at 10 (emphasis added). Likewise,
the House directed the Secretary to be “exceedingly circumspect in
the designation of critical habitat outside the presently occupied
area of the species.” H.R. Rep. No. 95-1625 at 18 (emphasis
added).

23

Furthermore, the Fifth Circuit’s decision
extinguishes the statutory criterion that “such areas
are essential for the conservation of the species.” 16
U.S.C. § 1532(5)(A)(ii). As informed by the definition
of “essential,” the designated habitat must be “of the
utmost importance” or “indispensable” for the
conservation of a species. Merriam-Webster’s Collegiate
Dictionary 427 (lith ed. 2005). Congress clearly
understood that its use of “essential” would impose a
stringent limitation on the areas that could be
designated as critical habitat." An area that only
contains a single feature, which by itself would not
sustain the species, cannot be “essential.” The
operative effect of this term is particularly apparent
where, as here, the unoccupied area is not connected to
occupied areas, would require extensive modifications
and annual maintenance to become suitable habitat,
and is not subject to current or anticipated restoration
efforts or conservation measures. Markle, 827 F.3d at
481 (Owens, J., dissenting). By upholding the
designation of Unit 1, the Fifth Circuit removed any
principled limitation on the Secretary’s ability to
designate critical habitat and rendered this authority
“virtually limitless.”"© Markle, 848 F.3d at 649-51

'* As Representative Duncan explained, “I think that in order to be
consistent with the purposes of this bill to preserve critical habitat
that there ought to be a showing that it is essential to the
conservation of the species and not simply one that would
appreciably or signiticantly decrease the likelihood of conserving
it.” 124 Cong. Rec. 38,154 (emphasis added).

“In part, the Fifth Circuit justified its decision based upon a then-
existing regulatory requirement that the Secretary could only
designate an unoccupied area as critical habitat “when a
designation limited to its present range would be inadequate to

24

(Jones, J., dissenting). This is contrary to what
Congress intended and what the ESA explicitly
commands.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of
Certiorari should be granted.

Respectfully submitted,

WILLIAM R. MURRAY TYSON C. KADE
NATIONAL ALLIANCE Counsel of Record

OF FOREST OWNERS JOSEPH B. NELSON
122 C Street, N.W. VAN NESS FELDMAN, LLP
Suite 630 1050 Thomas Jefferson St., N.W.
Washington, D.C. 20001 Washington, D.C. 20007
(202) 747-0742 (202) 298-1800

tck@vnf.com

ELLEN STEEN KATIE SWEENEY
DANIELLE QUIST ADAM ECKMAN
AMERICAN FARM NATIONAL MINING

BUREAU FEDERATION ASSOCIATION
600 Maryland Ave.,S.W. 101 Constitution Ave., N.W.
Suite 1000W Washington, D.C. 20001

Washington, D.C. 20024 (202) 463-2600
(202) 406-3600

Counsel for Amici Curiae

August 14, 2017

ensure the conservation of the species.” Markle, 827 F.3d at 470
(citing 50 C.F.R. § 424.12(e)). The Services have subsequently
deleted this requirement from their regulations. See 81 Fed. Reg.
at 7,434.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A09. Public record. Not legal advice.