Congressman Paul Gosar

For Immediate Release

Date: November 27, 2018

Contact: Emilio Navarrete

Western Caucus Commends SCOTUS on Dusky Gopher Frog Critical Habitat Decision 
Courtesy of Erin Schaff, Reuters

WASHINGTON, D.C. – Today, members of the Congressional Western Caucus released statements reacting to news of this week's SCOTUS Dusky Gopher Frog critical habitat decision:

Chairman Paul Gosar (AZ-04): "The Supreme Court ruling is a victory for the Constitution and private property rights. In an unanimous 8-0 ruling, the Court found the federal government has no authority to lock up private land for species that don’t habitat the land that is being locked up. In doing so, the Court wiped out the unconstitutional Court of Appeals decision and sent the case back to the 5th Circuit with specific instructions. The American people are tired of the land grabs, especially those from the previous administration. The Endangered Species Act is 45 years old and has a 3 percent recovery rate. It is far past time that Congress bring the ESA into the 21st Century and addressing the numerous issues associated with critical habitat designations is something that should be on the table."

Chief Regulatory Reform Officer Andy Biggs (AZ-05): "Yesterday’s unanimous ruling by the U.S. Supreme Court in Weyerhaeuser v. U.S. Fish and Wildlife was a positive development towards modernizing the Endangered Species Act. The 5th Circuit should find a balanced approach towards protecting the environment and local interests. This decision follows a rollout of landmark congressional legislation to modernize this outdated act, and I hope that we will use the remaining weeks of the 115th Congress to pass these serious reforms." 

Rep. Doug LaMalfa (CA-01): "Blocking development of land in the name of a species that doesn’t even live there is absurd. Yet for too long, environmentalist judges have made it the law of the land. This is one of the many provisions of the 45-year old Endangered Species Act that’s in desperate need of modernization. The Supreme Court did the right thing with yesterday's decision. Everyone needs to come to the table and take a good look at the ESA as a whole so that we can implement changes that make it more effective and less unnecessarily restrictive. In the Western Caucus, we’re committed to doing exactly that."

Rep. Rick Crawford (AR-01): "Like Chief Justice Roberts, I have an ordinary understanding of how adjectives work. I am glad to see the terrible ruling from the Fifth Circuit overruled and reign in agencies run amok. We are a nation of laws, and the Supreme Court’s ruling ushers in a new era of agency accountability and proper wildlife conservation."

Rep. Garrett Graves (LA-06): "I commend the Supreme Court’s unanimous decision yesterday rejecting attempts by the federal government to effectively commandeer private land without compensation.  We all support efforts to protect endangered species, but the Fish and Wildlife Service’s dubious efforts to protect species by taking private property in Louisiana without any actual endangered species is alarming and clearly outside the intent of Congress or logic. If left unchecked, the federal agency’s aggressive efforts could potentially set a precedent where the government could just deem virtually any American’s backyard as critical habitat and useless to the actual property owners. We will continue to work to reign in federal agencies acting outside the law."

Rep. Kevin Cramer (ND-At Large): "While the case has been sent back for further proceedings, the Supreme Court made some important decisions to protect property rights from overreach under the Endangered Species Act. To be designated critical habitat it should actually be habitat for the species and economic impacts must be considered."

Rep. Pete Olson (TX-22): "I have long said, we need to take care of our threatened species— they are part of the legacy we leave to our kids and grandkids. However, decisions around protecting that legacy must be targeted, common-sense and focused on protecting truly endangered species with a balanced approach that also protects the rights of Americans. We can do both, and this court ruling is a step in the right direction."

Rep. Debbie Lesko (AZ-08): "I applaud the Supreme Court for their unanimous decision to protect private property rights. The federal government has no place in our backyards or on our personal property. We must continue to fight the previous administration’s attempts to encroach on private property and land. This decision is a victory for the American people."


Courtesy of the United States Supreme Court 

The Fish and Wildlife Service administers the Endangered Species Act of 1973 on behalf of the Secretary of the Interior. In 2001, the Service listed the dusky gopher frog as an endangered species. 
That required the Service to designate “critical habitat” for the frog. The Service proposed designating as part of that critical habitat a site in St. Tammany Parish, Louisiana, which the Service dubbed “Unit 1.” The Service concluded that Unit 1 met the statutory definition of unoccupied critical habitat because its rare, high-quality breeding ponds and distance from existing frog populations made it essential for the species’ conservation. The Service then commissioned a report on the probable economic impact of its proposed critical-habitat designation. 

Unit 1 is owned by petitioner Weyerhaeuser and a group of family landowners. The owners of Unit 1 sued, contending that the closed canopy timber plantation on Unit 1 could not be critical habitat for the dusky gopher frog, which lives in open-canopy forests. The District Court upheld the designation. The landowners also challenged the Service’s decision not to exclude Unit 1 from the frog’s critical habitat, arguing that the Service had failed to adequately weigh the benefits of designating Unit 1 against the economic impact, had used an unreasonable methodology for estimating economic impact, and had failed to consider several categories of costs. The District Court approved the Service’s methodology and declined to consider the challenge to the Service’s decision not to exclude Unit 1. The Fifth Circuit affirmed, rejecting the suggestion that the “critical habitat” definition contains any habitability requirement and concluding that the Service’s decision not to exclude Unit 1 was committed to agency discretion by law and was therefore unreviewable. 

To read more, click HERE.

Critical habitat designations impact the use of public and private lands. Often critical habitat is designated with little science about whether the habitat is suitable or necessary for species recovery, or about whether the species has ever or will ever actually live there.  

In 2016, the Obama administration greatly expanded the authority of the Fish and Wildlife Service (FWS) to designate critical habitat. Under this expanded authority, FWS began to designate areas that  species did not currently inhabit and areas that may at some undetermined point become critical habitat, effectively conferring almost unlimited discretion to the agencies in their designations. 

On May 18, 2018, Congressman Johnson's Amendment #94 to H.R. 2, colloquially known as the Farm Bill, was agreed to by voice vote on the Floor of the U.S. House of Representatives.

The amendment clarifies that private conservation efforts that contribute to species recovery should be recognized as such when evaluating and measuring endangered species habitat range and recovery status. To read the corresponding press release, please click HERE

On July 12th, 2018, members of the Congressional Western Caucus unveiled a bipartisan package of nine bills, all united by the goal of modernizing and improving the Endangered Species Act of 1973 (ESA). Two of these bills addressed the critical habitat issue, the WHOLE Act introduced by Rep. Mike Johnson (LA-04) and the STORAGE Act introduced by Chairman Paul Gosar (AZ-04). To read the corresponding press release, please click HERE.

On September 26th, 2018, the WHOLE Act along with three other ESA modernization bills passed through a full committee markup in the House Committee on Natural Resources. To read the corresponding press release, please click HERE.


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