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Tuesday, October 02, 2018

Uninhabitable Habitats in Weyerhaeuser: The perfect “text versus purpose” sequel to TVA v. Hill

For the little guy in the photo, Weyerhaeuser Company v. United States Fish and Wildlife Service, argued yesterday before SCOTUS, is the term’s most important case. At stake in this Endangered Species Act litigation are five ephemeral ponds and accompanying piney uplands in Louisiana that could some day be inhabited by the Dusky Gopher Frog, a species now tenuously represented by roughly 100 amphibians in a single pond in Mississippi. The Secretary of the Interior designated those Louisiana ponds as “critical habitat” that is “essential for the conservation” of the frogs under 16 U.S.C. §1532(5)(A)(2).

For law profs, the Secretary’s designation is chiefly interesting as a perfect counterpart to the TVA’s attempt to open the Tellico Dam in TVA v. Hill: Both cases involve classic showdowns between statutory text and purpose where the fate of a species turns on arcana of diction. In TVA v. Hill, SCOTUS famously followed the letter of the ESA, treating the decision to close the completed dam’s gates as an “action” covered by the statute over Justice Powell’s dissent that enjoining the operation of a nearly-complete dam to save the lowly snail darter was an absurdity. Letter beats spirit to save the little fish. In Weyerhaeuser, the plain text cuts exactly in the opposite direction, against the frogs. The pine forest in which those ponds are located cannot actually support the species without substantial modification. (The trees, apparently too dense and dark, need a bit of thinning by fire before the frogs can live there). Thus, the Secretary has designated land as “critical habitat” that is actually uninhabitable by the species for which it is “essential.” The Secretary’s justification: These are actually some of the only ephemeral ponds in existence capable of sustaining this species on the edge.

After the jump, some grudging support for the textualist reading, even though it might doom the frog and make hash of the ESA’s larger purpose.

1. Does “plain meaning” of “habitat” support Weyerhaeuser’s interpretation over the frogs’ survival?

The Fifth Circuit focused on the term “essential” in finding that the “critical habitat” need not currently be habitable by the endangered species. (According to the Fifth Circuit (page 20), “[t]he statute requires the Service to designate ‘essential’ areas, without further defining ‘essential’ to mean ‘habitable’”). But the idea of “habitability” seems to be baked into the statutory term “habitat” regardless of what “essential” might mean: To treat as a “habitat” an inhabitable place seems like the very essence of paradox. I suppose that one might stretch, defining “habitat” to mean “potential habitat.” The coverage of the statute, however, then balloons to cover any place that might theoretically be modified to be habitable by some species — that is to say, anywhere. As Chief Justice Roberts noted during oral argument, “if you have the ephemeral ponds in Alaska, you could build a giant greenhouse and plant the longleaf pines and the -- the frog could live there.” Neither the venerable Ed Kneedler’s brief nor his oral argument had a good answer to how to limit the scope of the statute once the implied “habitability” limit was removed from the noun “habitat.”

Like Justice Powell in his TVA v. Hill dissent, Justice Kagan tried to nudge the term “habitat” into the zone of ambiguity by noting that the ESA contemplated a broad notion of habitability: The term “habitat” in the ESA plainly refers to places where species could live but do not currently occupy, so it could include potential as well as actual habitability. But the textualist would seem to have a crisp reply: “Habitat” is defined by actual habitability, not actual occupancy. (Consider an analogy: A “house” is a place where people can be housed: It remains a “house” even when it is vacant, but it does not remain a “house” if people cannot be housed in it). It is hazardous to guess votes from oral argument questions, but if Justice Kagan ultimately takes the view that “habitats” can be uninhabitable, then she might have to forfeit the thick grammarian’s spectacles that she inherited from Justice Scalia.

2. Does the “plain meaning” make any policy sense?

One might reasonably object, however, that requiring a place that is essential to the conservation of a species to be habitable by that species at the moment of designation undermines the larger purpose of the ESA, which is to save species on the brink of extinction. The FWS performed a comprehensive survey of potential sites at which the Dusky Gopher Frog could survive and found perilously few: The species lives underground most of the time in dry uplands, hopping down to ephemeral ponds to breed. Thus, the species needs not only upland forested habitat but also connected corridors to ponds that could dry up during breeding season in a drought. The site in Louisiana had the ponds and the uplands but the wrong type of pines. The Nature Conservancy or some similar outfit, however, might have been willing to buy out Weyerhaeuser to modify the pines. Why then cavil at the details of a noun when a little nudging will accomplish the statute’s apparent goal?

The familiar 1990s answer that the “plain text” reflects the limits on statutory purposes necessary to enact laws begs the question of how to determine whether text is actually “plain.” Sure, we now all accept that old 1990s insight that statutes have costs as well as benefits, enemies as well as friends, that both enemies and friends are needed to pass a law, and that textual quirks that contradict the statute’s apparent Big Purpose could be part of a deal needed to make a deal. The problem with this now-venerable insight is that it does not tell us whether text is actually “plain” (aka a part of a legislative bargain) or ambiguous (just a legislative oversight). As I and others have argued (notably Richard Re and Ryan Doerfler), the idea of ambiguity is deeply ambiguous. My argument above for a narrow reading of the “plain text” is certainly reasonable, but the opposite argument that “habitat” could include “potential habitat” is not frivolous. Perhaps the narrower reading of the term was part of a legislative deal to enact the ESA, but maybe the opposite argument comes close enough to creating a textualist tie and thereby triggering Chevron deference. As Doerfler has insightfully argued, to know how close rival textual arguments must be to create such a tie, one must necessarily look outside of text to the stakes. Here, the stakes include a species on the brink of extinction.

Broaden the textualist perspective to take into account these extra-semantic concerns, however, and one must bring in those concerns from all sides of the political spectrum. Against the frogs’ future, one must balance the risks to property rights from imposing an implied easement over all land that could be “reasonably” modified to make a home for a species. Weyerhaeuser claims to have lost tens of millions of dollars from the ESA cloud on their title. To quote another famous frog, it isn’t easy being green: The FWS’s environmental aspirations could eliminate a lot of land needed for housing. (Those piney uplands have become more valuable as more frequent hurricanes flood the coastal areas).

The advantage of the narrower, crisper reading of “habitat” is that it not only removes this cloud on land titles but also places some judicially manageable limits on the FWS’s jurisdiction. In an era of intense polarization, these sorts of limits sidestep hotly politicized disputes in the adaministrative process that gum up rule-makings for years. Judicial case-by-case assessment of the FWS’s rules for “reasonable” modifications of uninhabitable habitats will be costly. Unless the narrower definition of “habitat” will severely undermine the ESA in other cases, therefore, I am inclined to support Weyerhaeuser’s reading. I have not plowed through all of the amicus briefs: Maybe there is a persuasive parade of horribles marching through one of them, explaining how a narrow reading of “habitat” will drastically curtail the ESA’s scope in other cases. If not, then I am inclined to favor a clean reading and let the Dusky Gopher Frog take its chances with a voluntary purchase by the Nature Conservancy.

Posted by Rick Hills on October 2, 2018 at 11:00 AM | Permalink


"Weyerhaeuser claims to have lost tens of millions of dollars from the ESA cloud on their title"
Saying it doesn't make it so. Where is the proof in the record to substantiate this self serving claim? The economic analysis conducted by FWS said the "hypothetical" costs could range from "0 to 34 M." Note the word hypothetical. There has been no showing how this designation would cause any economic loss. Indeed the designation itself has no legal effect whatsoever on current uses and management of the property. Absent a change in use requiring some form of federal action, like a 404 permit, the ESA is not triggered. The isolated ephemeral ponds on the property are not jurisdictional waters under the CWA as interpreted in SWANCC and codified in the much maligned WOUS Rule. So filling them would not require a 404 permit. Nothing in the record suggests that there is any WOUS on the property. And even if there were the requirements for obtaining a 404 permit under the 404 b Guidelines are more stringent than the requirements under the ESA as applied through the section 7 consultation procedures designed to avoid jeopardy or adverse modification of critical habitat. In short there has never been a negative biological opinion based on adverse modification of critical habitat, much less unoccupied habitat. "Ephemeral" would be a good word to describe the cloud Weyerhaeuser sees on its partial interest in the property.
In terms of a "clean"statutory construction,the ESA mandates that decisions like this be based on the "best available scientific evidence." Here the undisputed scientific evidence shows that designating and restoring this breeding habitat--the last of its kind outside Mississippi-- is "essential" for the recovery of this species. Without it, said the peer reviewers, the frog goes extinct. Given that how could the Secretary justify a decision not to designate it? The dictionary defines essential as "absolutely necessary; extremely important." That's exactly what the frog experts said. Against that you have the land owner's naked assertion of economic harm. In the 1978 amendments Congress considered but ultimately chose not to impose a cost benefit analysis for critical habitat designations. Nor is there any evidence it intended to give land owners a veto.
It does look like a 4-4 draw with the 5th Circuit decision being upheld. Prospects for reargument once the vacancy has been filled seem remote.

Posted by: Pat Parenteau | Oct 4, 2018 6:32:49 AM

The most compelling argument is the jurisdictional one. I don't see how Weyerhaeuser can say with a straight face it has been harmed, so I don't comprehend why the merits even matter.

Posted by: James | Oct 3, 2018 4:30:41 PM

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