Courthouse Steps Decision: Weyerhaeuser v. United States Fish & Wildlife Service

 

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Thursday, November 29, 2018 during a live teleforum conference call held exclusively for Federalist Society members.     

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Decision teleforum on Weyerhaeuser v. United States Fish & Wildlife Service. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today's call.

 

Today we are fortunate to have with us Mark Miller, who's Senior Litigation at Pacific Legal Foundation. After our expert gives his remarks, we'll then go to audience Q&A. Thank you for sharing with us today. Mark, the floor is yours.

 

Mark Miller:  Thank you, Micah. Good afternoon, everyone, and good morning to those of you listening on the West Coast. My name is Mark Miller. I'm a Senior Attorney with Pacific Legal Foundation, and Micah and The Federalist Society asked me to do a teleforum on the case Weyerhaeuser v. U.S. Fish & Wildlife Service, which was a decision, a unanimous decision, of the U.S. Supreme Court reached earlier this week. Pacific Legal Foundation's involvement with the case is that the case involves a dispute between a number of landowners in Louisiana and the U.S. Fish & Wildlife Service in an Endangered Species Act case. And Pacific Legal Foundation has been representing most of the landowners in the case from the beginning of the case, with Weyerhaeuser Company being one of the landowners we do not represent. So the case is known as Weyerhaeuser, but we represent the other landowners.

 

I was just reading Rick Brookhiser's biography of Chief Justice John Marshall, and when Brookhiser describes some cases in the book, he prefaces it by saying that every legal case could be a short story. And so this case, I think, has gone on for so long that it could actually be a novel.

 

But at bottom, what the case is about is about your property rights. The client's ability, the property owner's ability to use their property free of unreasonable or legal interference with his property rights and his ability to use his property. So, here, what you have is a family, Edward Poitevent and his family have owned several thousand acres of timberland in Louisiana in St. Tammany Parish, which for those of you who know Louisiana, St. Tammany Parish is on the far side of the Lake Pontchartrain Bridge. And so St. Tammany is effectively a suburb from New Orleans. So the far side of Lake Pontchartrain from New Orleans. So St. Tammany, where Edward Poitevent's family has owned land for more than 100 years, is over the years becoming suburbia for New Orleans.

 

But going back to when they first owned they're property, it was, as I said, timberland. It's been a tree farm. The family has used the property since Reconstruction. They had a mill years ago during the Depression. They almost lost the property because of the Depression. But they were able to maintain ownership of the several thousand acres. And now they lease the property. They entered a lease in the 1950s, and the lessee, now, is the Weyerhaeuser Company.

 

And so they've been the landlord of this property, they've owned the property for all these decades, really over a century. And in the early 2000s, unbeknownst to them, a frog was going to come in to their lives. It was, at the time, was known as the Mississippi gopher frog. The Mississippi gopher frog, pursuant to the terms of the Endangered Species Act, was declared an endangered species by the U.S. Fish & Wildlife Service in 2001. And according to the Endangered Species Act, the federal government has to designate "critical habitat", property that would be habitat, and also critical—essential if you will—for that species to be conserved, to be brought back.

 

And so, initially, the Fish & Wildlife Service did not make that designation. But, ultimately, by 2010, they had a proposed designation for the Mississippi gopher frog. And, not surprisingly since it was known as the Mississippi gopher frog, the designations of the "critical habitat"—so the land that would be set aside for this frog—was going to be in Mississippi. But a biologist and some naturalists did not think that was enough land to support the Mississippi gopher frog. And they, actually, then, pointed to land in Louisiana, which just turns out to sit on the acreage that our client's own, Edward Poitevent and his family. And Weyerhaeuser Company, as a lessee, also owns a small piece of it. And the historical biologists said, "This land over here in St. Tammany Parish, Louisiana could be backup habitat for the frog because decades and decades ago, within the historical range of the frog, this frog would've been seen or heard, would've croaked, in Louisiana, if you will."

 

And so Fish & Wildlife Service took that direction and decided to declare what has become known as "Unit 1" of the designations. "Unit 1" of the "critical habitat" designation for the frog is our client's property, 1,544 acres, of which our client owns the vast majority of it – Edward Poitevent and his family. And what that means is that designation means, in theory, is that the frog if it was put there -- you would think since it's critical and it's habitat, if you put the frog there it would come back and get away from being endangered, no differently than the bald eagle or any other species that has been brought back through the Endangered Species Act.

 

But, in fact, the problem in this case is that designating this land as "critical habitat" does not help the frog because the frog could not live on the land. Not only does the frog not live there, but if you put it there, it couldn't survive. And that's according to the government itself. The Fish & Wildlife Service says you need three essential features in the land, primary constituent elements, for the frog to survive. And we only have, at most, in this case one of them. That being ponds. It needs ephemeral ponds to breed, and then it needs upland habitat, and it needs an open canopy forest. Well, we may have the ponds on the property. For purposes of the case that's accepted. But you don't have an upland habitat, and you don't have an open canopy forest. As I said earlier, this is a tree farm, and it's actually a loblolly closed canopy forest. You can't have a closed canopy forest with these frogs because if you do, the frogs predators are going to swoop down and eat it, which will not help conserve it. So you'd have to effectively terraform this land to -- you'd have to change it dramatically to make a habitat for the frog. And so that's really been what the landowner was saying.

 

Well, the landowner learns -- between 2010 and 2012 when the final designation was made that included the Poitevent property in Louisiana, when learns about the frog, and he said, "Well, there's no frogs here. We don't know anything about frogs." But the government goes forward anyway. And that's when Pacific Legal is brought in, and we challenged the designation. And we say that -- well, we say any number of things. But, ultimately, as it worked its way through the courts, the fight became about whether you could designate land as "critical habitat" for endangered species when that land would not support the species at all. So was it essential to the frog's survivability here, or was it habitat, if you will?

 

And then, secondly, the case also developed into an interesting administrative law question, which is when the government -- when Fish & Wildlife Service decided this property was going to be "critical habitat" for the frog, according to the ESA itself, it had to weigh the economic impact that the designation would have on the landowners and weigh that against any sort of benefit to the frog, to the species. And here the government could not put together and show any quantifiable benefit to the frog, which is really not surprising because, as I said, the frog couldn't survive there unless you dramatically changed the property. Yet, the government did have to admit there was a significant economic loss to the property owner.

 

If you set aside -- and so let's say the property owners want to develop, which as I alluded to earlier, this area, St. Tammany Parish, is suburbia for New Orleans. So even though it's a tree farm now, ultimately, the landowners intend to develop the land and already have a plan in place with St. Tammany Parish, which the local county government, and the state to develop this land. So they're going to have to pull permits with the federal government, say a wetlands permit, a Clean Water Act permit, that under the ESA Section 7 before the government could approve that, it would have to consult with the Fish & Wildlife Service regarding the frog.

 

So let's say the Fish & Wildlife Service were to say, "Well, to protect the frog, you've got to set aside 60 percent of the property for the frog." Well, the government admits that would be a $20 million loss in value to the landowners. And then, if you set aside the entire property for the frog, which is effectively what Fish & Wildlife Service would intent to do if you look at this practically speaking, then you're looking at the $34 million loss. And I want to emphasize when I say a $34 million loss, that's not our number. That's not the property owner's number. That's not Weyerhaeuser Company's number. That's the federal government's estimate.

 

And so Fish & Wildlife Service said even in the face of a $34 million loss in development value to the landowners and no real quantifiable benefit to the frog, we're still going to go ahead and include "Unit 1", include the landowner's land in Louisiana in the "critical habitat" designation for the frog.

 

Well, until now, until the decision a few days ago, you could not challenge that weighing by the Fish & Wildlife Service, that decision not to exclude the habitat. The courts have been saying that the situation was within the discretion of the agency head and that landowner, for example, in this case our client, Edward Poitevent, his family, and Weyerhaeuser Company, they couldn't even sue over that decision, that that was simply entirely within the discretion of the agency.

 

So that sort of gets us to where we are this week. So the case was, then, argued October 1st. Tim Bishop with Meyer Brown argued the case on behalf of Weyerhaeuser. The landowners were there, too. We're all part of the briefing. Beyond the U.S. Fish & Wildlife Service, the family landowners, who Pacific Legal represents, and, of course, Weyerhaeuser, we also had to sign up for biological diversity as an intervener. And so the Supreme Court heard the case on the first day of the new term—so it was heard by eight Justices. It was the first argument of the new term. Justice Kavanaugh had not been confirmed as of yet. And the oral argument was interesting in the sense that it was the first day and the Court was sort of feeling its way, if you will. The Justices were feeling their way as to how they were going to decide this case. And so just this week we got a decision.

 

Coming out of the oral argument, it was hard to tell where the Court was going to go. The second question that I've alluded to, which is an administrative law question, about when you can sue over an agency decision under the Administrative Procedure Act, any number of followers of the Court's jurisprudence thought that that was sort of an easier question for the Supreme Court, that they might overturn that decision of the lower court. And that had been uniformly decided in other circuits as well that you couldn't challenge that economic -- the decision not to exclude the property despite the economic impact and the lack of quantifiable benefits under the ESA. Any number of us thought that that was a way the Court could resolve the case. Well, not resolve it, but send it back down to the lower court and tell the court to make that decision under the APA. They decided that was an arbitrary and capricious decision not to exclude the property.

 

But the other question, though, the first question, which really got a lot of media attention for the case, was about habitat for the endangered species. Some people tried to make the case to be about the Endangered Species Act in general, and can you protect endangered species. And really, that's not what the case is about. I think everyone involved with the case would say, of course you need to protect endangered species, but you have to do it, number one, pursuant to the law, and number two, in a way that will actually conserve, bring back the species from the brink of extinction. And here, of course, this designation doesn't do that because the frog can't live there.

 

And so, Chief Justice Roberts was very active at the oral argument. He seemed to tease out the government argument. I think I can give an example of one of the questions he argued, and that gets to the heart of what the case was about. Which is this: if the land in Louisiana only has one of three characteristics that are essential for the frog to survive and be conserved, be brought back, and the government can call that "habitat" and "critical habitat" for the frog, even though the frog couldn't live there, then why couldn't the government also, then, designate property in Alaska "critical habitat" for this frog? Put up some sort of geo-dome and retrofit that land and invest whatever millions of dollars you would need for the frog in Alaska and call that "habitat" for the frog. And the government lawyer, Ed Kneedler for the Solicitor General's Office, didn't really have an answer for that question at all. And so I think that was sort of a foreshadowing of the opinion we got this week because it was Chief Justice Roberts who wrote the opinion.

 

And what he did, in large part, was he crafted a unanimous opinion, which has been portrayed to some extent as a limited win for the landowners, but I would proffer was actually a pretty big win because if you look at where they were the day before the opinion came out, they were looking at the inability to use the land going forward other than as a tree farm. And that once the tree farm was exhausted, one the trees were exhausted, they wouldn't have been able to do anything. They would've been subject to the government's decision making when they would need to pull a permit, and the government has already cast its lot, and said, "This land is needed for a frog."

 

And I should say as a tangent, and this doesn't get a lot of play in the opinion, or any play at all, but there is a different way that the federal government could go about protecting the frog under the ESA, under the Endangered Species Act, that would've been valid, and still would be valid, which is to simply buy the land. Under the ESA Section 5, the government could make an offer or either reach an agreement or even take it by eminent domain and pay just compensation. If the government thinks it's so important that the public use for this land to protect the frog, the government could buy the land and create the frog habitat that it wants to put there. And then you couldn't argue with it. But instead the government used a different tool, a tool that really has no applicability on these facts because this land is not habitat for the frog at all. The frog can't survive there.

 

Now Chief Justice Roberts didn't say that in opinion in so many words. Instead, he said the lower court didn't really address whether this land is habitat, let alone "critical habitat" for the frog. And so he and the Court unanimously remanded the case back to the lower court to decide in the first instance whether this land is habitat for the frog at all. He makes an interesting -- one of the later moments -- there's a couple of later moments in the opinion. The second one, is which he gives a sort of grammar lesson, where he says when we're talking about "critical habitat", he says, "According to the ordinary understanding of how adjectives work, 'critical habitat' must also be 'habitat.' Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality." I was happy, having been on this case, to then share that little paragraph with my wife, who is a high school English teacher. And she appreciated Chief Justice Roberts's point there.

 

So Roberts was saying you can't call land here "Unit 1"—Louisiana and our clients' land—"critical habitat" unless it's habitat in the first instance. And he said the lower court didn't really pass on that. And so not to get too deep into the weeds into what happened in the lower court, but really, I think, although he doesn't cite this opinion, Edith Jones of the Fifth Circuit had dissented from denial of rehearing en banc over the case on behalf of six judges of the Fifth Circuit. And she made this very point that Chief Justice Roberts is making here. Of course, she answered the question in the dissent. And she said, in fact, a "critical habitat" has to be a subset of habitat, and if a creature can't survive on a piece of property without dramatic change to the property, then it can't be habitat, let alone "critical habitat".

 

And what she did—and I'm not a mathematician but I did appreciate this—is she created a couple of Venn diagrams in the opinion. And in one of the Venn diagrams, she shows how there's all land, then there's going to habitat for a species within the first circle. And then within that circle, there's going to be "critical habitat". That's what the ESA sets out, as she shows. But instead, what she said the Fish & Wildlife Service was doing, or had done, was they created a Venn diagram where you had all land. Then you had one circle of habitat under the ESA, and then you had a second circle that didn't overlap with the first circle at all that was "critical habitat". It sort of really, by using picture paints -- you know, a picture's worth a thousand words. So she has two pictures—2,000 words. She really cuts to the heart of the matter. And I would respectfully suggest that that's really what Chief Justice Roberts is doing here. He's following Judge Jones's lead.

 

So on the first question, then, of whether this is habitat, whether this can be "critical habitat" for the frog, Chief Justice Roberts, on behalf of the unanimous Court, vacated the lower court decision and said, "Try again." And then on the second question, which is an administrative law question, this question of can you challenge the agency head when the agency decides not to exclude property from a "critical habitat" designation, is that even reviewable in court under the APA? And, again, we get an unanimous opinion, which is, -- as I said earlier, that was -- the second question of the case that was a question that I think a number of followers thought was a little bit easier question, which, of course, then makes anyone wonder why the lower courts couldn't get it right. I don't know.

 

But at Pacific Legal Foundation, we have had some degree of success in opening the courthouse doors in cases like this in a case a couple years ago called Hawkes, which was a Clean Water Act case, and another case called Sackett, litigated by Damien Schiff of Pacific Legal Foundation. Both cases, the government in one of them the EPA and the other the Corps of Engineers, the federal agencies said, "You can't challenge our decision." And on behalf of our clients, Pacific Legal said, "Yes, we can." And in both cases, unanimous cases, Sackett and Hawkes, the Supreme Court said, "Yes, indeed. The property owners are right. Pacific Legal is right. You can sue about this." So it doesn't answer the question on the merits as to whether what the government was doing in those cases was right, but it is to say that the courthouse doors are open to Americans to challenge the government when the government does something that affects their property rights.

 

And so this case, it's sort of nice to see, is another unanimous decision, not just on the question of vacating the decision on the habitat finding, but also on the administrative law question, which is, "When can you sue?" And some have already theorized that that second part of the opinion will become a broader decision. So not just an environmental question, not just an Endangered Species Act case, but also just an administrative law case that becomes cited more widely.

 

What else . . . So before I open the door to questions, I will point out one other -- for those real appellate opinion lovers who like cute turns of phrase, things like that -- you know, Chief Justice Roberts is famous when he was in private practice for opening his briefs with something to humanize the case that the judges or the justices reviewing the brief could find a handle into it. And so here Chief Justice Roberts hearkens back to the way he likes to do that when he describes the frog -- I said, I don’t think I ever tied this up.

 

This was originally known as the Mississippi gopher frog because it was in Mississippi. But now, of course, at the Supreme Court it's known as the dusky gopher frog. I would posit, although who knows why the government makes any decision it makes, but here it went from the Mississippi gopher frog in 2001 when it was declared endangered to the dusky gopher frog in 2012. The name was actually changed by rule. I would suggest the change may have been made because, they, at the same time that the change was made, or near about the same time, they then designated land in Louisiana for the frog. And so I guess they could've changed the name to the Mississippi-Louisiana gopher frog, but instead it became the dusky gopher frog.

 

But anyway, back to Roberts. So Chief Justice Roberts describes the frog and says, the frog is "noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes." And then, "Less endearingly, it also secretes a bitter, milky substance to deter would-be diners." So that's his opening paragraph of the opinion -- or opening paragraph of Section 1(A) of the opinion, where he's sort of trying to, I guess in this sense . . . I can't remember the literary term I'm looking for -- persona. He's sort of personifying the frog, if you will. He's trying to get a handle on what this frog is about.

 

So the case, though, really is not about a frog; it's about private property rights, and the Court unanimously came down on the side of making sure private property rights are protected in a fair way. And he remanded this -- the Court remanded the case back for the Fifth Circuit to consider "Is it habitat at all?" And then if it is habitat, then I think the second question would be, was it arbitrary and capricious or an abusive discretion for the government not to exclude the property when not only was there this $34 million potential loss in value, but also what wasn’t even considered by the Fish & Wildlife Service is the amount of money it would cost to terraform the land to make it proper living conditions, to make it a habitat for the frog because, as I said, you need the upland breeding habitat, you need ephemeral ponds, you need open canopy forests.

 

So you're going to have to clear from 1,500 acres, which is double the size of, say, Central Park. You're going to have to clear all those closed canopy loblolly trees and plant pine trees in open canopy. And you're also going to need frequently fires, I should mention, because fires have to clean out the underbrush because the frog needs to be able to eat. And the underbrush if it grows up too much, will take away from the living conditions down there on the ground. And so you'd have constant fires in what's going to become suburbia, which is really not a good idea. And that's what the local government supported us, and the state government, with an amicus brief. And you would need an entirely different landmass in Louisiana to support the frog. So you never know what will happen in the courts as the case progresses, but we are certainly very happy with this result at the Supreme Court, and we look forward to the case doing down to the Fifth Circuit to continue the litigation. And so with that, I will be happy to take any questions, Micah.

 

Micah Wallen:  Thank you, Mark, for those remarks. I'm not seeing any immediate questions lining up. Mark, did you want to tell us what you think is going to happen in the Fifth Circuit here on remand?

 

Mark Miller:  You know, it's interesting because it's been a few years since the original decision. And then there was a motion for rehearing en banc that pended for a year. And so there's been some changes in the Fifth Circuit in the couple of years since the original opinion, and then the denial of the rehearing en banc. I should mention the original lower court decision was 2-1, with Judge Owen writing a dissent, and then the rehearing en banc was an 8-6 decision, with as I said, Judge Edith Jones writing the dissent on behalf of the six. So now in the lower court, it's back at the Fifth Circuit -- and I should note that Chief Justice Roberts was very explicit in the opinion for the Court in saying he wants the Fifth Circuit to address this. The Court wants the Fifth Circuit to address this in the first instance. Often times, you read opinions carefully, the Court doesn't necessarily say that. And so you'll see the circuit court remand that first instance question to be resolved in the district court. And so at a minimum, we can reasonably expect that the Fifth Circuit will be hearing it, which is, I think, good for the landowners in the case, who are hoping to see some sort of finality. It means this process is hopefully getting a little bit closer to an end now.

 

And then I think you're going to see a real focus, as I was saying, on what is habitat, and the Venn diagrams that Judge [Jones], the two Venn diagrams that -- how can you have "critical habitat" if it's not habitat? The frog can't live there unless you make change. And the Center for Biological Diversity wanted to say, "Well, it's reasonable change." But, in fact, in the lower courts, I would respectfully suggest it was accepted that you would need a significant change to the property. And so it was only at the U.S. Supreme Court level with the briefing where Fish & Wildlife Service and then CBD, it seemed to me, tried to moderate and tweak what had been accepted below, which was you don't have the primary constituent elements, two of the three basic things you need for this frog to survive. You don't have two of the three. And that seemed to be fairly accepted it would take significant change.

 

When we got to the Supreme Court, I would suggest -- and I don’t fault them. You want to present your best case that you can, but they tweaked their presentation. And all of the sudden, it became, "Well, it would just be some moderate change." And that was, I think, a smart play on their part because Justice Kagan in the oral argument picked up on it. And she tried to create in her questions and her hypotheticals to Tim Bishop, who was arguing on behalf of Weyerhaeuser, how much of a change to land do you need to take it from [non-]habitat to []habitat? So, for example, if this land had two of the three constituent elements, would that make it habitat?

 

And then, of course, there are other cases in this "critical habitat" designation land of case law, where you might have two pieces of property where either one of the two pieces of property that are adjacent to each other, one has some of the constituent elements and the other piece of land has the other constituent elements. So you put those two pieces of land together, and then together they create all of the necessary elements to create habitat. But you take either piece separate and you don’t have that. And so you can at least see the logic there, where the two pieces of land sort of work together. But here you don't have that. Here you have a piece of property 70 miles away from the nearest actual habitat, occupied habitat if you will, under the statute when the statute talks about occupying unoccupied habitat, and this land is, in fact, being designated, the government said, in case of catastrophe. If there's some catastrophe in Mississippi, then you could use this land in Louisiana as a back stock for the frog.

 

Micah Wallen:  Well, I guess that must have triggered a lot of questions from the audience because now we have quite a few lined up. So without further ado, let's go to our first audience question.

 

Caller 1:  Yeah, I'm a little confused. It sounded like the government's definition of habitat was not met. And yet, the government pursued the case. Am I wrong? If the land didn't qualify as habitat under the government's definition, why did the Trump administration pursue the case at the Supreme Court?

 

Mark Miller:  Why did the administration pursue the case at the Supreme Court? That's certainly a good question. I think, trying to put myself into their heads, they had had a win at the lower courts, and they wanted to defend the win. And so I think that that would explain why they then took -- it was, as you're picking up -- this was an Obama administration rule and designation, but the Trump administration continued with it. And so they, then, adjusted their sails at the Supreme Court, as I said.

 

Initially, in the lower courts they took the position that "critical habitat" did not have to be habitat at all. And that's what then prompts Chief Justice Roberts to do his grammar lesson. But, of course, U.S. Fish & Wildlife Service's lawyer, the Solicitor General's Office, I suppose, the DOJ and the Solicitor General's Office recognized that opinion didn't hold water. That argument was not going to hold water. And so they trimmed their sails and said, "No, we concede now that 'critical habitat' does have to be habitat." The Center for Biological Diversity did not concede that point. But at the Supreme Court, they conceded that point. And so I don't know why Roberts and the Court didn't reach a decision with finality.

 

Although, you could say -- you could speculate, reasonably speculate, that there's some value, as Chief Justice Roberts sees it, to a unanimous decision. So if he is following Judge Jones's dissent, where the fight in the Fifth Circuit had been about whether land that is not habitable to a species can be essential to the species [inaudible 31:50] statutory definition of unoccupied critical habitat. And Judge Jones took the case in a little bit of a different direction. And then Chief Justice Roberts, writing on behalf of the entire Court follows Judge Jones's lead and says, "I want the Fifth Circuit, now, to address that argument," basically on the merits. I think he was able to win a unanimous decision with that position, with that angle on the opinion.

 

And so I don't know if that's what he was up to, but certainly it's consistent with what Chief Justice Roberts has talked about and what any -- as I said, I was reading Brookhiser's biography of Marshall. And Chief Justice Marshall was very focused on bringing in unanimous decisions of the High Court to try and demonstrate that the Court was not about politics, that the Court was about law, and that there is some abstract concept of law and this is not about power. And so you could see that if Roberts could bring a unanimous verdict this way -- I'm not saying that's what he was doing, but it might have been why he pursed it this way.

 

And so what the federal government will do now is anyone's guess. But at the same time, they did have a win. They did lose at the U.S. Supreme Court, but all is not lost, yet, for them. So it'll be interesting to see what the federal government does. I can certainly predict to an extent what I expect the Fifth Circuit to do, procedurally, in terms of extra briefing and likely an oral argument etc. But what the Fish & Wildlife Service, what the SG's Office, what the AG's Office will do in terms of defending the designation now, I suppose, maybe, is anybody's guess.

 

Micah Wallen:  Let's go to our next question.

 

Daren Bakst:  Yeah, hi. This is Daren Bakst from the Heritage Foundation. Thanks for the presentation. I'm a little confused. Chief Justice Roberts kind of made the argument, as you said, that if this Louisiana land can be considered habitat, then property in Alaska can be considered habitat if it made certain improvements, etc. So I guess what I'm trying to figure out is what is the actual question that the Fifth Circuit is even going to be addressing? Are they -- and what was the majority -- what was the unanimous decision on -- Justice Roberts's has made his state on what he thinks. He doesn't think that the Louisiana land would be habitat, at least I would think that's what he's saying. So the question is what is the Fifth Circuit actually addressing then? And to what extent does the opinion in any way tie the hands of the Fifth Circuit in limiting what can actually be habitat?

 

Mark Miller:  Well, in terms of the question they're going to be considering, I'm just simply going to, effectively, read what the last paragraph of that portion of the opinion where he says what he wants them to do. "The Court of Appeals concluded that 'critical habitat' designations under the statute were not limited to areas that qualified as habitat. The court therefore had no occasion to interpret the term 'habitat' in [the ESA] or to assess the Service’s administrative findings regarding Unit 1. Accordingly, we vacate the judgment below and remand . . . to consider these questions in the first instance." So what he's doing is saying, "Well, Fifth Circuit, you said that "critical habitat" did not have to be habitat. Well, now, I think I'm telling you it does. That was the grammar lesson about "critical habitat" means habitat. It has to be part of habitat. Critical is modifying habitat. So now he wants to consider in the first instance because he said they didn't decide it, that if it has to be habitat under the statute, does this land qualify as habitat? So I think that's what he's doing.

 

Now, whether he's tying their hands or not, I guess, depends on how the lower court interprets this, what some have called a "short opinion." In the interest of unanimity, he perhaps held back the cards as to what the Court actually thinks. And when I say the Court, this opinion is an eight-Justice opinion, but we now know that there's nine Justices on the Court. And so there may be some reading of tea leaves that will go on there as well. I don't know. But I think that -- you can never predict what a lower court's going to do when they've had a decision vacated and then remanded. But a decision that's been vacated or remanded and done unanimously by the High Court, there might be something between the lines there. Does that make sense, Daren?

 

Daren Bakst:  Yep. Thanks.

 

Micah Wallen:  Let's go to our next question.

 

Tamara Tenney:  Hi, thanks for the presentation. This is Tamara Tenney. You mentioned that there was some applicability of this case outside of environmental law. I don’t practice environmental law. But I'm interested in that. And in particular, do you view the holding in this case as potentially narrowing the scope of those questions that might fall within the non-justiciable set of questions committed to agency discretion?

 

Mark Miller:  That is exactly what I think that second question sort of gets at. And, in fact, a lot of the briefing on behalf of the landowners that Pacific Legal focused on [was] that question of non-justiciability. The agency wanted it to be that the courts can't even review because there's no way to weigh the agency head's decision not to exclude, because, under the statute, he may exclude land from the designation after the agency weighs the factors laid out in this statute, including the economic impact.

 

And so the government was putting all their muscle behind the word "may." But since the agency "may" exclude, their position was that is entirely unreviewable. It's just entirely up the discretion of the agency head. And we argued, and Weyerhaeuser argued as well, as the opinion says, "Weyerhaeuser’s claim is the familiar one in administrative law that the agency did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion." And then it goes on: "This is the sort of claim that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion." And so because it's that sort of routine assessment that courts review for abusive discretion, or arbitrary and capriciousness under the APA, this is just another one of those.

 

And he also earlier in the opinion points out, "This Court has noted the 'tension' between the prohibition of judicial review for actions 'committed to agency discretion' and the command in §706 [of APA] that courts set aside any agency action that is 'arbitrary, capricious, [or] an abuse of discretion,'" under Heckler. And he says, you know, we have made clear -- well, and I'm putting words in his mouth. "To give effect to §706 and to honor the presumption of review, we have read the exception in §701 [of the APA] quite narrowly," which is the idea that decisions aren't reviewable, "restricting it to 'those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.'"

 

And so this is another blow for, sort of, we call it, I think in one piece that we've written since the decision, "Chevron's nasty cousin" – the idea that it's kind of a deference doctrine here, but it's even more than deference; it's abdication that the courts were not even willing to review agency decision making at all. They weren't just deferring; they weren't even going to review it at all. True deference and, you know, basically, abdication. And here's Chief Justice Roberts, on behalf of a unanimous Court, saying, "No. This is reviewable. The courthouse doors are open. You can challenge it."

 

And this part of the opinion, I would say, does not -- Daren had asked about whether the opinion tied the Fifth Circuit's hands in terms of what is habitat, and there may be some grist for that mill in that portion of the opinion. Here, I would say Chief Justice Roberts did not do much to put his -- to sort of impliedly put his hand on one side of the scales in terms of whether this was an abuse discretion, other than in one portion of the opinion, he notes, on page 11, where Weyerhaeuser pointed out that the Service had not fully accounted for the economic impact of designated "Unit 1" because it didn't value what it would cost to make the property habitat for the frog – the burning that I mentioned, the changing of the 1,500 acres—two Central Parks, if you will, New York Central Parks—from closed canopy forests to open canopy forests. They didn't calculate that at all. They just simply looked at what the loss in economic value was. And so Weyerhaeuser, there, was trying to not just say, "You should review it and here's why because it was arbitrary and capricious." Roberts didn't go too far down that part of the road, but certainly, there's a little bit there.

 

So, yeah, back to your question. Yes, I think the second part of this decision is a straight admin law answer that is good for those who are affected by administrative agency decision making that has consequences that they want to bring into court for judicial review.

 

Micah Wallen:  Let's go to our next caller.

 

Warren Belmar:  Good afternoon. This is Warren Belmar with a question. It really is more policy, whatever the political or career decision makers' motivations were to start this proceeding. We have a new set of political appointees, if not career employees, at the Fish & Wildlife Service. What is the benefit of the Fish & Wildlife Service continuing to fight this issue? Or can they as a policy decision adopt there the Court clearly was directing them to go and avoid the need for tying up the time of the Fifth Circuit or the district court?

 

Mark Miller:  I would punt on any policy questions and say the lawyers at DOJ and Fish & Wildlife would be better off answering that question. I will say, though, that the Wall Street Journal in an opinion about the decision, I think it was yesterday, said they hoped the AG --the editors at the Wall Street Journal said they hope the AG would take the agency off of autopilot when it came to this bureaucratic decision. So what is the benefit? I guess you would have to ask them and whoever the new AG may be.

 

Mark Miller:  Thank you. Let's go to our next caller.

 

R.J. Smith:  This is R.J. Smith with the Competitive Enterprise Institute. And, first off, I'd like to say three cheers and thanks to PLF for another very important victory. Congratulations.

 

Mark Miller:  Thank you, R.J.

 

R.J. Smith:  And, secondly, this extremely important decision on "critical habitat" must be actual habitat. And it seems to me, I wonder if you've given any thought to it, that this might help slow down this gigantic push that we're seeing from both NMFS And Department of Interior and the environmental movement as a whole to begin to push for creation of potential habitat all over the country, largely driven by the changes in philosophy that came in in the George W. Bush administration under Lynn Scarlett, that climate change has to be recognized as perhaps the new driving force for endangerment of species because their habitat changes and shifts faster than the species can shift. So we have to start looking, to plan ahead, to begin to find ways to protect or designate habitat that is not only unoccupied now but is not even habitat now. And they're increasingly making decisions on that, and they're doing the same I guess with the U.S. Forest Service and the Department of Interior on landscape-scale conservation programs. It would seem to me that this should be able to be used, this definition from the Court on habitat, to put the brakes on all of that. And I wonder if you had any thoughts on that.

 

Mark Miller:  You know, I think sub rosa underneath this case in terms of the explicit discussion, the sub rosa discussion—what's going on underneath, while not being discussed, but going on underneath—is, as you said, climate change. And I'm not taking a position on that—climate change—one way or the other. But what it is to say is that here, part of the designation of "Unit 1" from the government's position was that if there's a catastrophe in Mississippi, and the implied catastrophe would be climate change, would be some sort of weather event that would wipe out the frogs in Mississippi. Well, in 2010 they designated in Mississippi where the frog lives. The idea is that 70 miles away the government designates this other land, which is "Unit 1", as backup habitat – backup if there is a catastrophe, which flows from what you're alluding to, I think. I would posit is what is going on. I don't know, but that seems to be what's going on underneath the surface.

 

And so, in fact, that doesn't come out in the opinion. It's certainly not really in the briefings in any sort of explicit way. But what Chief Justice Roberts I think is saying is that if agencies want to do what you're describing, R.J., it's really Congress's job, then, to change the law, because the law -- what Roberts is saying in this opinion on behalf of the unanimous Court, I think, is that the law doesn't allow that. The law doesn't allow the agencies to do that. The law requires habitat to actually mean what habitat means. And this is, not to be too textualist, but habitat pretty much meant in the late 1970s when they created "critical habitat" in the statute what it means now: if you can't survive on a piece of land, well, then, that's not habitable for you. And Mars is not habitable for us.

 

And so here, I think, yes, you're exactly right. I think that this decision could be a way of saying agencies can't try and do things that the law does not allow. They have to work within the power that Congress has delegated to them. They can't just freelance to achieve whatever ends they think are necessary to achieve. They may be perfectly valid ends. But it's Congress's job to amend this law, or create a new law, that does what they're trying to do sub rosa. They can't just do it on their own. And I think that's where the push against the regulatory state is going. And so, yes, I think this opinion is a very good step in that direction.

 

R.J. Smith:  Yeah, and your comment about they could designate habitat under the decision that was used earlier on this by the lower courts, that they could easily designate land in Alaska. I mean, you can see the same thing. CBD could call for designating parts of the Arizona desert as habitat for the endangered green sea turtle because the Gulf of California is only 50 miles away and climate change is going to cause sea level to rise 200 feet, or something like that. There's no stop to that if they just start guessing what habitat will be like 50 years from now or 100 years from now.

 

Mark Miller:  Yeah, and R.J. I will just follow up. I wouldn't want to put words in their mouth, but I think that -- I was on a panel with a lawyer from Defenders of Wildlife after the decision, and we spoke on the panel about what you're getting at. This idea of when Chief Justice Roberts asked about the difference between Alaska and Louisiana and basically asked for a limiting principle on what is habitat. How far can you go with habitat? And he and I discussed whether there is a limit. And his position was, no, there can't be. And if I understood him right, his position was that because of, as you're saying, climate change. That there needs to be the ability to address that.

 

And I'm not saying there should or shouldn't be, but I'm saying you can't do it if the statute does not allow it. And this statute, I would proffer, doesn't allow it. And that's really the point, I think, of Chief Justice Roberts's opinion. You can't take the word habitat and say it just means anywhere. And we can say that habitat for a polar bear is the Florida Keys because you could create the conditions necessary to support that polar bear in the Florida Keys. It sounds outlandish, but, in fact, that's really what Chief Justice Roberts was getting at. And I think that's -- you could say that's why because clearly the government chose not to put a limiting principle. They had to have known that question was going to come, but they intentionally chose not to say there's a limit to what could be habitat. And it very well may be for the reasons you're saying because they want to use it in that way.

                                                                                                

Micah Wallen:  Mark, did you have any closing remarks to wrap up?

 

Mark Miller:  No. Just thank you very much, Micah and The Federalist Society, for allowing me to speak about the case. Really, it's an honor always to speak to Federalist Society members and others about any case that I'm involved with in any sort of way. This case was very special. And it's a really good decision. It's not that long, and I'd encourage everyone to read it, particularly if you're an administrative law practitioner because of that second question. And then if you do environmental law and ESA work, there's no question you need to read it for the Chief Justice Roberts's discussion of habitat. And then if you're a textualist, so if you're a fan of Scalia, I think you also will like Chief Justice Roberts's opinion because it's the way he gets into grammar. So thank you very much, Micah.

 

Micah Wallen:  The pleasure's all ours. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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