Beveridge & Diamond Principal Jamie Auslander (Washington, DC) was quoted in a Law360 article titled "High Court Could Rein In ESA's Reach In Frog Habitat Fight."
The article discusses the implications of the U.S. Supreme Court accepting review of a timber company's challenge to the U.S. Fish and Wildlife Service's (FWS) decision to designate private property as "critical habitat" for an endangered frog that currently does not and cannot inhabit the subject land. The Fifth Circuit affirmed the FWS's designation of the land as "essential" for species recovery in 2016, reasoning that "the statute requires the service to designate 'essential' areas without further defining 'essential' to mean 'habitable,'" and in February 2017 the circuit voted 8-6 to not rehear the case. The minority dissent criticized the decision, saying in effect that there should be a "habitability requirement" for the designation.
Mr. Auslander noted that the case could place important limits on FWS authority under the Endangered Species Act to designate unoccupied lands as critical habitat: "It is possible ... that [the Justices] view this as an opportunity to place a marker capping the reach of [the FWS]," Mr. Auslander said. He added that the court might hold that for a critical habitat designation to stand, either the essential habitat features for the species already need to be present, or the FWS could be held to a high standard to demonstrate based on the best available scientific evidence that those features soon will naturally develop. This issue will gain further importance as FWS assesses critical habitat for other species with far broader ranges, and as a related subsequent FWS critical habitat regulation continues to be scrutinized and litigated.