October 6, 2017

The Coalition for a Sustainable Delta, Western Growers and the San Luis & Delta Mendota Water Authority filed an amicus brief in Markle Interests v. U.S. Fish and Wildlife Service.

The United States Supreme Court is currently considering a petition by Markle Interests, a timber company with operations in the Southeast, challenging the final rule designating critical habitat for the dusky gopher frog issued by the U.S. Fish and Wildlife Service (USFWS) under the U.S. Endangered Species Act.  The petition comes after a 2-1 vote, of the United States Court of Appeals for the Fifth Circuit, to affirm the USFWS’s decision to designate areas as “critical habitat” for the dusky gopher frog despite scientific information indicating those areas were are not habitat for the species.

The brief argues the USFWS has taken unwarranted liberties in extending the definition of critical habitat above and beyond what has been established by Congress and long-standing caselaw. Such existing standards require habitat of a species to contain a combination of attributes necessary to support that species. Designation of areas as critical habitat that cannot support the species is contrary to the plain language and legislative history of the ESA.

“If the panel’s majority decision is left to stand,” the brief argues, “millions more [acres] will almost assuredly be designated in the future including areas that do not constitute habitat for the target species.”

Overly broad interpretations of the ESA, such as in this case, are a detriment to economic development while also failing to recover the endangered species they purport to protect.

The signors of the amicus brief are urging the Supreme Court to grant the petitioner’s writ seeking review. Other parties supporting review include the U.S. Chamber of Commerce and 18 states. The Supreme Court is anticipated to decide whether or not take the case in late fall 2017.