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

No. 17-71

3n Tye

Supreme Court of the Anited States

@

A

WEYERHAEUSER COMPANY,

Petitioner,

Vv.

UNITED STATES FISH AND

WILDLIFE SERVICE, et ai.,

Respondents.

@

-

On Writ Of Certiorari To The

United States Court Of

For The Fifth Circuit

2

BRIEF OF DEFENDERS OF WILDLIFE,

DEFENDERS OF WILDLIFE

1130 17th Street N.W.

i D.C. 20036

(202) 682-9400

jrylander@defenders.org

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ...............0ccc0cc000eeee0es iii

INTERESTS OF THE AMICI CURIAE............... 1

SUMMARY OF THE ARGUMENT ..................... 1

Po RRR AIS ESA ae 3

1. Critical habitat is an integral part of the

ESA’s comprehensive program to conserve

a tinictstisniraiontnennsnnseninstnasmens 6

A. Congress designed the ESA to address

the threats of habitat loss and degra-

ee eitridcassiinictatgtendavisiiimpeniatinncetnniadapinc 6

B. Designating critical habitat promotes

I cntedecescnistnceccnsonssesscncese 11

Sel iaistesadeavacecsacteeneseetinctaneenentsccionces 17

Il. Imposing a temporal habitability require-

ment on unoccupied critical habitat is

neither mandated by the ESA’s plain lan-

guage nor reconcilable with the Act’s con-

I isientdccnsectancsietnascsescereceen 20

A. The ESA does not require that critical

habitat be habitable at the time of des-

itl icdevcitetininanpeelabeentinceiidgiegedbantiennnne 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

is

TABLE OF CONTENTS—Continued

Page

Ill. The Fifth Circuit’s ruling neither im-

pinges on the rights of states nor raises

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

SN artisastntecdsicntdtadistaianssnsnssosssetsnineeicents 35

iil

TABLE OF AUTHORITIES

Page

CASES

Alabama-Tombigbee Rivers Coal. v. Kempthorne,

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

ey CI I iccicincenictncnttncedindotsenieiimsononcesie 33

Andrus v. Allard, 444 U.S. 51 (1979) ................c0ccce000s 32

Babbitt v. Sweet Home Chapter of Cmtys. for a

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

Balt. Gas & Elec. Co. v. Natural Res. Def. Coun-

SE ee 31

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

EEE Se ane 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 & Wild-

life Serv., 378 F.3d 1059 (9th Cir. 2004).................. 15

Gonzales v. Raich, 545 U.S. 1 (2005) .................00cc000e 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

iv

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

SEI rTttcoshicachvepessiniectehsinibeindnecppesbctaiiaindeininiabiciniadbindneituminanennses 34

Nat'l Ass’n of Homebuilders v. Defenders of Wild-

ee EE III esnsscoceasnsnnanstesassnapsontncsoserene 11

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

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

I iiinttererititiceciniatsnniiernsgeaiibisienstaes 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.

ESTE eS ARSENE SI SIP niet aeencaneC NS Ne 32, 33

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

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

EI ES IE He SCS a eee 32, 34

San Luis & Delta-Mendota Water Auth. v. Sala-

zar, 638 F.3d 1163 (9th Cir. 2011), cert. denied

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

ad 33

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

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

Stenberg v. Carhart, 530 U.S. 914 (2000) .............0...-- 22

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

Sia oR 1, 6, 8, 33

Zobrest v. Catalina Foothills School Dist., 509

ee I crthnceccnsiccssénixaniencnnitidinitcnanssopsinnntapnnntets 31

Vv

TABLE OF AUTHORITIES—Continued

Page

STATUTES

I asa aciacidelatitninmgienina iste 33

TT oni smnrerenisetnsseenmnuesennpanties 7, 16, 24

To on crclinntintinieneebpenneniuensnienitiie 8, 16, 28

I ise ccceccinlaeeeatitncatinnnitinl 15, 29

oi ceetacinatialiae 28

se IID criretinennctncncsnsscevescussnccensesened 9,21

16 U.S.C. § 1532(5)(Aii) ............. shinsahicedbdnialialacaaaaba 9, 21

TT iciccniscncncdoncrecentnesnddapuedstenindebisiiaiiia 8

Be es OF ID scerccsccescccncnssccccsecoscseeveqsesin 8,11

I i ccniicisnisonierasineniadenciventunsiiti 8

a ID vcccierecserepscsssesccocsansvenetnseneetn 15

I i eicinicniinthinnrigennannintinatinaennssish 9, 29

I a sicenilaieeieetesbiteiclonnieatiiel 10

I hoi raciierrntemmntdabidintenininginasenainiiiiel 15

TEER Sa er Ce 15

ID iiccnccniicsenseresaseinesintinasecnstenietnn 10, 12

aes 10, 15, 17

critic esi incecacindcscteinininpndeniioniiniannittn 10, 15

ES 9

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

vi

TABLE OF AUTHORITIES—Continued

Page

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

IIIT HEI ccicisdnctiniseaeiteincintitcndedbepteniniaiseeieitidaneneinieneinened 31

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

STITT TIITI Uidichcnictnriebesiatenictintimmnndsipidepaentabenescnbusdnentiteiinds 31

OTHER AUTHORITIES

Se ilcneinniinnlientieetieitetiahimnnigiamenaindabiiihinigiiba 10

icc ciieninmiiecageemimmemnintnaee 10

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

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

124 Cong. Rec. $21,575 (daily ed. July 19, 1978)......... 7

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

70 Fed. Reg. 46,924 (Aug. 11, 2005) ............00.......00.. 25

73 Fed. Reg. 62,816 (Oct. 21, 2008) .............000......c0000 25

75 Fed. Reg. 31,387 (June 3, 2010) ........0........cccccceeeees 29

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

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

79 Fed. Reg. 19,712 (Apr. 9, 2014) ..000.0.........ccccccceeeeeee 13

79 Fed. Reg. 19,760 (Apr. 9, 2014) ..00.......0..cccccccceeeeeee 13

81 Fed. Reg. 14,264 (Mar. 16, 2016) .........000000.....e 12

Abbey E. Camaclang et al., Current Practices in

the Identification of Critical Habitat for

Threatened Species, 29 Conservation Biology

SEIN iisedsathidsinditaninsdbctiveattsabliniabaneniadinisdimbasetiasceneess 30

vii

TABLE OF AUTHORITIES—Continued

Page

Amy N. Hagen & Karen E. Hodges, Resolving

Critical Habitat Designation Failures: Recon-

ciling Law, Policy, and Biology, 20 Conserva-

tion Biology 399 (2006) ................cccccceeseceeeeeeeeeeeeeeee 16

Black’s Law Dictionary (10th ed. 2014) ...............00000. 28

Daniel A. Farber, Separated at Birth? Address-

ing the Twin Crises of Biodiversity and Cli-

mate 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 Ecol-

RE Pe i iccccedessunnvenitnbitiinenneniamenmsinesies 4, 20

Dashiell Farewell, Revitalizing Critical Habitat:

The Ninth Circuit’s Pro-Efficiency Approach,

GE OEE, Ba Gr isco rsvituccnstnsanenenntteteninnane 14

Dave Owen, Critical Habitat and the Challenge

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

RR Ne Ae Ree Se oa oe 18

David Wilcove et al., Quantifying Threats to Im-

periled Species in the United States, 48 Am.

Inst. Bio. Sciences 607 (1998) ..0.............cccceeeeeeeeeeeeeee 4

Elizabeth Kolbert, The Sixth Extinction: An Un-

TE Ty iriiternttcrrcesisttancsnnninineniscnniinia 4

Be, Be Beh Ey GOED cccccecccscccsescsccesanscvesecntimienned 6

Ee. SUI Uk Ge CED cvcccccocscsccesencnsusenustnnssovsieiins 7

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

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

TABLE OF AUTHORITIES—Continued

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) ..00...........cccccceceeeeeeeeeeeee 17, 18

Kalyani Robbins, Recovery of an Endangered

Habitat Under the Endangered Species Act, 58

Buff, L. Rev. 1006 (2010) ..................csecccesesreeceecereees 16

Martin FJ. Taylor, The Effectiveness of the En-

sis, 55 BioScience 360 (2005) ................cccccceeeeeeeees 16

Michael J. Bean & Melanie J. Rowland, The Evo-

lution of National Wildlife Law (3d ed. 1997)........ 15

National Research Council, Science and the En-

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

edu/read/4978/chapter/GA72 ...............ccccccceceeeeseeeeeees 4

Press Release, Ctr. for Biological Diversity, Land

Purchase Protects Essential Mississippi Habi-

tat for Endangered Dusky Gopher Frog (May

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

news/press_releases/2015/dusky-gopher-frog-

icin cninniniidtsiticedtetntpcinstuatiettemsesecssese 14

ide Conservation Plan for Longleaf Pine,

America’s Longleaf Restoration Initiative

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

I I irrctrrtninedsereunacesennatvenssncssseees 24

ix

TABLE OF AUTHORITIES—Continued

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

Stephanie Brauer, Note, Arizona Cattle Grow-

ers’ Pyrrhic Victory for Critical Habitat, 38

8 ee 30

Stuart L. Pimm et al., The Biodiversity of Spe-

cies and Their Rates of Extinction, Distribu-

tion, and Protection, 344 Science 987 (2014)............ 4

US. Fish & Wildlife Serv., Delisted Species,

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

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

U.S. Fish & Wildlife Serv. & Nat’l Marine Fish-

eries Serv., Endangered Species Consultation

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

esa-library/pdffesa_section

i iairtieciniceninncnnennterecartnintemeccninns 26

U.S. Forest Service, New Mexico Meadow Jump-

ing Mouse Habitat Improvement Projects

on the Agua Chiquita Grazing Allotment,

https//www.fs. usda.gov/project/? project=5 1273

(last visited July 2, 2018) ..0..............ccccccceeeeeceeceeeeees 12

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

1

INTERESTS OF THE AMICI CURIAE'

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 inter-

ests in protecting wildlife, particularly endangered

and threatened species, from habitat destruction and

degradation and other threats. On behalf of their mil-

lions of members and supporters nationwide, Amici

advocate for the effective implementation of the En-

dangered 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 legisla-

tion 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 sub-

mission. All parties have consented to the filing of this brief.

2

recovering most imperiled species and established the

purpose of the statute to “provide a means” for conser-

vation of the ecosystems on which threatened and en-

dangered species depend. Thus, in addition to

prohibiting actions .hat directly kill or harm members

of listed species, Congress ordered the Secretary of the

Interior to identify the areas “essential to the conser-

vation of the species” and to designate them as critical

habitat “to the maximum extent prudent and determi-

nable.” 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 de-

pend on designation of unoccupied critical habitat as

there is no other mechanism in the ESA that ade-

quately protects these areas.

2. The ESA does not contain, and this Court

should not impose, a current “habitability” require-

ment 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 in-

clude historically crucial but now degraded habitat, as

well as other areas that are essential to the conserva-

tion (i.e., recovery) of the species. In upholding the U.S.

3

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

critical habitat for the dusky gopher frog, the Fifth Cir-

cuit did not expand the reach of the ESA; it ruled in

accordance with the Act’s plain language and conser-

vation purpose and appropriately deferred to the Ser-

vice’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 pro-

nouncements on constitutional questions or the bal-

ance 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 Ser-

while the Department of Commerce’s National Marine Fisheries

tat provisions apply to both agencies and we therefore use Service

or Services throughout this brief to refer to their collective obliga-

tions under the Act.

4

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 ex-

tinction, the loss of biodiversity, driven largely by hab-

itat degradation and destruction, remains a rapidly

growing crisis. See, eg., 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 (“[Tlhere is no disagree-

ment in the ecological literature about one fundamen-

tal 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 en-

dangered species and the ecosystems on which they de-

pend. Accordingly, this brief will focus on the benefits

5

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 designa-

tion. Amici urge the Court not to graft onto the ESA a

requirement of current habitability for unoccupied ar-

eas. This extra-statutory requirement is fundamen-

tally inconsistent with Congress’s decision to allow for

the designation of unoccupied areas that are biologi-

cally “essential” for species conservation. Such a rule

would undermine the conservation value of critical

habitat and make species recovery—the ESA’s ulti-

mate goal—less likely.

Beyond this issue of statutory construction, which

Petitioner raises for the first time in this Court, Peti-

tioner’s challenge amounts to no more than a garden-

variety disagreement with the views of an expert

agency entrusted by Congress to perform a highly tech-

nical 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 Ser-

vice designated this unoccupied critical habitat only

after independent peer reviewers determined that ex-

isting 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

6

compelling basis exists for upsetting the Service’s ex-

pert 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.

Il. 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 degrada-

tion

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 de-

struction 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 hab-

itat.” 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 extinc-

tion are hunting and destruction of natural habitat.’ Of

these twin threats, Congress was informec that the

greatest was destruction of natural habitats.”)

7

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

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

In the 1978 amendments to the ESA, Congress

reemphasized that “[t/he loss of habitat for many spe-

cies is universally cited as the major cause for the ex-

tinction of species worldwide.” H.R. Rep. No. 95-1625,

at 5 (1978). Indeed, in the lead-up to those amend-

ments, Congress specifically stated that “if the protec-

tion of endangered and threatened species depends in

large measure on the preservation of the species’ hab-

itat, 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 ad-

dress actions directed at species themselves—such as

hunting and trade—but also to “provide a means

whereby the ecosystems upon which endangered spe-

cies 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 under-

stood this relationship between species protection and habitat

loss. See, e.g., 119 Cong. Rec. 30,528 (1973) (statement of Rep. Leh-

man) (“The new law recognizes that the greatest threat to endan-

gered 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. $21,575 (daily ed. July 19, 1978) (statement of Sen.

Garn).

8

procedures which are necessary to bring any endan-

gered species or threatened species to the point at

which the measures provided pursuant to this chapter

are no longer necessary.” Jd. § 1532(3). This conserva-

tion 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 re-

flected 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 conser-

vation of imperiled species, with specific management

actions left to the scientific judgment of the appropri-

ate Service. First, the Service determines whether a

species warrants listing as “threatened” or “endan-

gered.” 16 U.S.C. § 1533(a)(1). In making this determi-

nation, the first factor the Service considers is “the

present or threatened destruction, modification, or cur-

tailment of its habitat or range.” Jd. § 1533(a)(1)(A).

Consistent with Congress’s emphasis on habitat

preservation, the Service must also at the time of list-

ing and “to the maximum extent prudent and determi-

nable” designate “any habitat of such species which

is then considered to be critical habitat.” /d.

§ 1533(aX(3)A), (a3 A).

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. Oc-

cupied critical habitat is defined as “the specific areas

within the geographical area occupied by the species,

9

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

physical or biological features (I) essential to the con-

servation of the species and (II) which may require

special management consideration or protection.” Jd.

§ 1532(5)(A\(i) (emphasis added). By contrast, the def-

inition of unoccupied critical habitat includes the “spe-

cific areas outside the geographical area occupied by

the species at the time it is listed . . . upon a determi-

nation 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 un-

occupied critical habitat specifically omits the require-

ment 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(5AXMi) 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.” Jd. § 1533(b)(2).

Once a species is listed, a series of substantive and

procedural requirements attach. While section 9 pro-

hibits “take” of endangered species without prior au-

thorization, id. § 1538(a)(1)(B),* 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

10

on federal agencies a substantive obligation to promote

the conservation of listed species. Jd. § 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. Jd. § 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 ar-

eas. The Act’s take prohibition protects species from,

among other things, “harm,” id. § 1538, but the regula-

tory definition of “harm” only applies to habitat modi-

fication 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 & Wild-

life Service has enacted a blanket rule extending section 9 prohi-

bitions to threatened species. 50 C.F_R. § 17.31(a).

11

By contrast, the proscription on federal agency actions

that may destroy or adversely modify critical habitat

protects designated areas regardless of whether an ac-

tion will directly harm individual animals. Thus, criti-

cal habitat designation provides the only statutory

protection for areas that are unoccupied but necessary

for the expansion and recovery of the species.°

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 smal!

patch of presently suitable habitat by the “destruction

lor] 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 spe-

cies still occurs and other areas needed for its conser-

vation, including historically occupied areas capable of

being restored and recolonized. For such species, des-

ignation of unoccupied critical habitat plays an indis-

pensable 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).

12

§ 1536(a)(2). For projects on federal lands or that re-

quire federal funding, approval, or implementation,

section 7 provides important substantive and proce-

dural checks on actions affecting habitat that is essen-

tial to a species’ conservation. But designation also

generates valuable information that federal, state, lo-

cal, 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 conser-

vation of endangered species and threatened species.”

16 U.S.C. § 1536(a)(1). This obligation covers every-

thing 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 en-

gaged with conservation partners and local ranchers to

install a series of cattle exclusion fences and alterna-

tive 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

13

Agua Chiquita Grazing Allotment, https://www.fs.usda_gov/

project/?project=5 1273 (last visited July 2, 2018). With-

out 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 lo-

cation and importance of the particular areas that are

essential to species recovery. Listing the species alone

agencies and private landowners alike may be other-

wise 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 sur-

vival. Jack McDonald, Critical Habitat Designation

Under the Endangered Species Act: A Road to Recov-

ery?, 28 Envtl. L. 671, 688-91 (1998) (discussing the no-

tice benefits of designation). This is especially true for

migratory species and those that depend on ephemera!

habitats.

A prime example of this occurs in the glacial out-

wash 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 observa-

tion extremely difficult. Jd. That difficulty is com-

pounded 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 aab-

itat) (“movements result in apparent changes of the oc-

cupancy status of a specific site over time, as juveniles

14

disperse and colonize new sites, or conversely, as terri-

torial individuals die and specific sites become unoccu-

pied”). If unoccupied areas were not protected by

critical habitat designation, the species’ protected hab-

itat 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. Des-

ignation of critical habitat allows the Service to iden-

tify 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 tai-

lor their activities to avoid negatively affecting a sen-

sitive area. See, e.g., Dashiell Farewell, Revitalizing

Critical Habitat: The Ninth Circuit’s Pro-Efficiency Ap-

proach, 46 Envtl. L. 653, 663 (2016) (“With more par-

ties on notice the more likely it is that habitat will

receive the consideration and protection it deserves.”).

Designation can also help maximize the conserva-

tion value of land acquisition by allowing parties to

target those areas that would most benefit a species.

For example, after conservation groups expressed con-

cern about development near one of the dusky gopher

frog’s last known breeding ponds, the real estate devel-

opers agreed to a land purchase that protected 170

acres of critical habitat for the species. See Press Re-

lease, Ctr. for Biological Diversity, Land Purchase

15

Protects Essential Mississippi Habitat for Endangered

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

biologicaldiversity.org/news/press_releases/2015/dusky-

gopher-frog-05-14-2015.html.

Perhaps most importantly, designating critical

habitat ensures that adequate focus is placed on spe-

cies 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 pro-

tect 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 be-

cause it is not limited just to those areas where a spe-

cies 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 espe-

cially important for areas that were historically occu-

pied 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 criti-

cal habitat is habitat, the protection of which is needed

to improve the species’ status quo; that is, it is primar-

ily needed for the recovery of the species.”). If the goal

16

is to recover species to a point where the Act’s protec-

tions 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: Untan-

gling and Reviving Critical Habitat Under the Endan-

gered 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 designa-

tion and positive trends in recovery status. See Martin

FJ. 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: Rec-

onciling 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. Jd. (“Critical habitat designa-

tion therefore helps populations improve, increases

knowledge about trends, and contributes to recovery

goals being met.”). Critical habitat is thus an im-

portant tool for recovering species, the ultimate goal

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

(definitions of “conserve,” “conserving,” and “conserva-

tion”).

17

C. Petitioner vastly overstates the economic

impacts of critical habitat designation

Contrary to the alarmist rhetoric adopted by Peti-

tioner and supporting amici, critical habitat serves a

vital function in the ESA’s conservation scheme with-

out 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 hu-

mans cease all activity on the land. The consultation

requirement that attaches to critical habitat is di-

rected solely at federal agency actions. 16 U.S.C.

§ 1536(a)(2). Thus, so long as no federal permit is re-

quired, 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 al-

most 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 re-

sult of FWS concluding either jeopardy or destruc-

tion/adverse modification of critical habitat.” Jacob

Malcom & Ya-Wei Li, Data Contradict Common Percep-

tions About a Controversial Provision of the U.S. En-

dangered Species Act, 112 PNAS 15844, 15845 (2015)

(reviewing all 88,920 USFWS consultations from Jan-

uary 2008 through April 2015). Most consultations

during this period were informal, but of the 6,829 for-

mal consultations, only two resulted in a jeopardy

18

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

the Service find that the proposed action would destroy

or adversely modify critical habitat. Jd. Despite that

finding, the proposed action was approved with tle

adoption of reasonable and prudent alternatives that

minimized impacts to habitat. Jd.* As this research

shows, section 7 does not, in theory or practice, ham-

string all private development. Rather it advances the

ESA’s recovery goals by striking a science-driven bal-

ance between conservation and economic activity.

On the record before the Court, Petitioner has not

sought, let alone been denied, federal permits to de-

velop Unit 1, and it is undisputed that the critical hab-

itat 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 | as

a commercial forest”). Even if Petitioner must ulti-

mately seek federal permits for the proposed develop-

ment,’ 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 ex-

tremely rare. See, e.g., Dave Owen, Critical Habitat and the Chal.

lenge 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 fed-

eral nexus, like a section 404 permit under the Clean Water Act,

33 U.S.C. §§ 1251 et seq. (1972).

19

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.*

We cannot stress enough: designating this area as

critical habitat is only the first step in a process to de-

termine how it will contribute to the frog’s recovery. In

contrast with the lack of evidence supporting Peti-

tioner’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 spe-

cies in the future. 77 Fed. Reg. 35,118, 35,124 (June 12,

2012) (“the five ponds in Unit 1 provide breeding hab-

itat that in its totality is not known to be present else-

where within the historic range of the dusky gopher

frog”). Moreover, the breeding ponds cannot be re-

placed or restored once destroyed. /d. at 35,123 (noting

* Judge Owen's dissenting opinion makes much of Peti-

uioner’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 will-

ingness of any existing landowner to conserve or improve a prop-

erty does not foreclose the Service from determining that a

particular area is essential to the species’ conservation—_a deter.

mination that, under the statute, turns on biological facts rather

than landowner preference. The point of designating critical hab-

itat is to identify and provide notice of the areas scientists believe

are essential to a species’ recovery before options for conservation

are foreclosed.

20

that years of effort to restore or recreate habitat of sim-

ilar quality elsewhere have failed). Thus, Unit 1 pro-

vides the best chance of increasing the representation,

resiliency, and redundancy that are essential to the re-

covery of the dusky gopher frog.’ 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.

ll. Imposing a temporal habitability require-

ment on unoccupied critical habitat is nei-

ther mandated by the ESA’s plain language

nor reconcilable with the Act’s conserva-

tion purpose

A. The ESA does not require that critical

habitat be habitable at the time of des-

ignation

Petitioner and their amici have seized on an ex-

traordinarily 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 ar-

gument, that unoccupied critical habitat must be hab-

itable at the time of designation, conflicts with the

ESA’s plain language and would significantly dimin-

ish, 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 re-

covery).

21

The ESA defines unoccupied critical habitat as the

“specific areas” that the Service determines to be “es-

sential for the conservation” of the species. 16 U.S.C.

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

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

whether it could, as is, support the species. A require-

ment that critical habitat must be immediately occupi-

able at the time of designation has no basis in the

statutory language and would foreclose designation of

restorable areas, areas that shift inte and out of habit-

ability, and areas that the Service has determined to

be essential for species conservation because they pro-

vide the source of ecological benefits for occupied por-

tions of the species’ range.

Petitioner’s effort to read a present habitability re-

quirement into the statute is problematic in many re-

spects. 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(5a\i) (emphasis added). In the very next

subsection, Congress omitted any such present tense

requirement for unoccupied critical habitat, and in-

stead required only a “determination by the Secretary

that such areas are essential for the conservation of

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

Congress acts intentionally when it “includes particu-

lar 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

22

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 stat-

ute, Petitioner relies heavily on a dictionary definition

of “habitat.” Pet. Br. at 23. But that definition gets Pe-

titioner nowhere. Indeed, it circumvents another car-

dinal 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 man-

ner that is irreconcilable with Petitioner's interpreta-

tion. 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 ques-

tion at the moment of designation.

Even if Congress had not already defined the rele-

vant term, Petitioner’s argument would still fail. Peti-

tioner 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 spe-

cies.” 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 “natu-

rally” live there, and that area cannot qualify as habi-

tat. But such a reading fails to properly examine what

23

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

many definitions, among them “growing without hu-

man 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 prow ide “food, shel-

ter and protection” for the frog, 77 Fed. Reg. at 35,131.

The frog, after all, naturally lived there u»wil at least

1965. Id. at 35,133.

This is not to say that critical habitat requires re-

storing all designated areas to pre-settlement condi-

tions. 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 ba-

sis 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

24

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’ con-

servation (i.e., recovery). That is why Congress left it

to the Service to ascertain which “specific areas” of un-

occupied habitat are “essential for the conservation” of

species that have been listed as endangered or threat-

ened. Determining which lands are essential to ful-

filling 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 jump-

ing 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’ 5 ern tad Restoration Initiative (2009),

Ginitiine a obas to sestave 8 million acres of longleaf

pine forest on private land by 2025).

A current habitability requirement could also pre-

clude the Service from designating dynamic habitats

that cycle in and out of habitability. Some species re-

quire transitory or ephemeral habitats that may go

25

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 Designa-

tion of Critical Habitat for the Wintering Population of

the Piping Plover (Charadrius melodus) in North Car-

olina, 73 Fed. Reg. 62,816, 62,818 (Oct. 21, 2008) (not-

ing that “designating specific locations of critical

habitat for the wintering piping plovers is difficult be-

cause the coastal areas they use are constantly chang-

ing 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. Fi-

nal 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 fore-

close 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 pro-

vide stream and sediment flows necessary for the sur-

vival 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

26

County, California that provides the source of wind-

blown 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 suita-

ble for occupation by the species at the time of desig-

nation."®

A current habitability requirement would put spe-

cies 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 rul-

ing is far more faithful to the precise language used by

Congress to define unoccupied critical habitat. See su-

pra Section I1.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 require-

ment. While an action “does not have to occur on designated crit-

ical habitat to trigger section 7 consultation,” Markle Interests,

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

2017) (Judge Jones dissenting), where no critical habitat is desig-

nated, the presence of the species is typically what triggers con-

sultation. 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/pdffesa_section7_

handbook. pdf (“A biological assessment is required if listed spe-

cies or critical habitat may be present in the action area.”) (last

visited July 2, 2018).

27

“|tlhere is no support for this contention in the text of

the ESA or the implementing regulation, which re-

quires 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 habita-

bility, is what is required by the plain terms of the Act.

Neither Petitioner nor the dissenting judges artic-

ulate when, if ever, unoccupied critical habitat would

be designated under their approach. Their counterin-

tuitive and extra-textual approach would foreclose des-

ignation 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 go-

pher frog, the Fifth Circuit did not “vastly expand the

ESA,” Pet. Br. at 35, nor did the court render unoccu-

pied habitat “easier to designate” than occupied habi-

tat. 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 unoc-

cupied 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,”

28

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

and their amici unduly minimize this statutory re-

quirement.

Judge Owen’s panel dissent turns to the diction-

ary 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 argu-

ment is unavailing. Black’s Law Dictionary defines “es-

sential” as “1. Of, relating to, or involving the essence

or intrinsic nature of something. 2. Of the utmost im-

portance; 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 ‘actuallly|’ 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) (“‘Conser-

vation’ is a much broader concept than mere sur-

vival.”). 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 pro-

vide a current benefit to the species. But it may

29

nonetheless be “of the utmost importance” and “essen-

tial to the conservation” of the species now and in the

future. Id. § 1532(5).

As this case illustrates, the Service must find, af-

ter taking into account economic and other factors,

that the best available scientific data supports the

proposition that a presently unoccupied area is “essen-

tial 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 scien-

itat was insufficient to conserve the frog. The Service’s

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

June 3, 2010). But scientific peer reviewers of the pro-

posed 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 on-

the-ground surveys of potential remnant habitat. Jd. at

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

“remarkable quality”). It also ruled out many other ar-

eas in both Alabama and Louisiana that lacked the

breeding ponds that are so importamt 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.

30

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.'' Congress adopted the definition of critical hab-

itat and elected, for reasons that make perfect sense,

not to require that unoccupied areas contain the “phys-

ical or biological features essential to the conservation

of the species.” Congress knew how to articulate a

standard requiring the identification of specific fea-

tures; 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 ar-

eas for policy reasons that are nowhere to be found in

the statute itself.

As the Fifth Circuit explained: “The Final Desig-

nation 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 support-

ing 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. Camaciang et al., Current Practices in the Identification of Crit-

ical 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 smal! amount of habitat desig

nated as critical habitat.’”).

31

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

827 F.3d at 472. The Service’s science-based determi-

nation 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”).

Ill. The Fifth Circuit’s ruling neither impinges

on the rights of states nor raises constitu-

tional questions

Although thie 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 “pruden-

tial rule of avoiding constitutional questions”). None-

theless, 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

32

(MBTA), 16 U.S.C. §§ 703-711, this Court has consist-

ently upheld federal regulation in this area. See, e.z.,

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 prob-

lem of ‘truly national’ concern.”) (quoting Gibbs, 214

F.3d at 505). For that reason, the D.C. and Fourth Cir-

cuits 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 Eth-

ical Treatment of Property Owners v. U.S. Fish & Wild-

life Serv., 852 F.3d 990, 1006 (10th Cir. 2017), cert.

33

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

Congress determined that eudangered and threatened

species are not only of “esthetic, ecological, educa-

tional, 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 con-

cerned as well with “the unknown uses that endan-

gered 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 in-

terstate 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 pro-

tection of all imperiled species—no matter their cur-

rent trade value or state of residence—is essential to

preserving America’s wildlife resources." Even if an

"2 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 amelt), cert. denied sub nom. Or

chards v. Salazar, 565 U.S. 1009 (2011); Alabama-Tombigbee Riv-

ers Coal. v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007) (Alabama

34

individual application of the ESA does not appear to

affect commerce directly, Congress has the power to

“‘regulate even noneconomic local activity if that reg-

ulation 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 multi-

ple states, as an essential part of the ESA’s compre-

hensive scheme to preserve the nation’s biodiversity

heritage. Even if it could be argued that the designa-

tion of Unit 1 does not directly affect interstate com-

merce, “that the regulation ensnares some purely

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

should not “excise individual components of that larger

scheme.” Jd.

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

uv. 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); Nat7 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).

35

Again, this Court need not engage these issues to

resolve this case but, if it should be necessary, the re-

sult is the same. The designation of unoccupied critical

habitat for the dusky gopher frog is well within the

reach of federal power.

,%

v

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