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

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In 2012, the U.S. Fish and Wildlife Service (Service or agency) designated 1,544 acres of land in Louisiana and additional land in Mississippi as “critical habitat” for the endangered dusky gopher frog. The agency made this designation pursuant to authority delegated by Congress in the Endangered Species Act. The Louisiana designation includes land owned by three family businesses that have held the property in their family for over a century and Weyerhaeuser Company, which leases some land from those landowners and also owns a small portion of it (collectively, the Landowners).

The government designated the Louisiana property critical habitat for the “shy frog” even though the frog has not been seen anywhere near the land—let alone in Louisiana at all—in more than 50 years; this led the Service to designate it unoccupied critical habitat. Because the Landowners did not believe the Endangered Species Act and the Constitution allowed the agency to designate their Louisiana land critical habitat for the frog, they challenged the designation as exceeding the agency’s statutory and constitutional authority. That challenge has now hopped its way to the Supreme Court, which will hear argument in the case on October 1, 2018—the first day of the new Court term. The case will have implications for both environmental law and administrative law practice throughout the country.

 

Featuring:

Mark Miller, Senior Attorney, Pacific Legal Foundation

 

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Event Transcript

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 Monday, October 1, 2018, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps discussion on the oral argument of Weyerhaeuser v. United States Fish and Wildlife Service heard by the Supreme Court earlier today. My name is Wesley Hodges, and I am the Associate 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 very fortunate to have with us Mr. Mark Miller, who is Senior Attorney at the Pacific Legal Foundation. After our speaker gives his remarks, we will move to an audience Q&A, so please keep in mind what questions you have for this case or for our speaker. Thank you very much for speaking with us. Mark, the floor is yours.

 

Mark Miller:  Thank you so much, Wesley. It is indeed an honor to get to speak to The Federalist Society audience today about the first argument of the Supreme Court 2018 term, Weyerhaeuser Company v. United States Fish and Wildlife Service. As Wesley said, I'm a Senior Attorney with Pacific Legal Foundation, and in that role, in terms of this case, I represent a number of the property owners who are involved with the case. My client, Edward Poitevent, and family business interests related to his family, own the underlying property in this case, which is about an Endangered Species Act challenge.

 

      So Edward's family, Edward Poitevent's family, has owned several thousand acres of timberlands, pinelands in St. Tammany Parish, which, if you're familiar with New Orleans, it's on the other side of Lake Pontchartrain when you cross that long bridge. And they've been using the timber on that land going back about 150 years as a tree nursery. And back in the 50s, they leased the tree nursery to a predecessor, to Weyerhaeuser Company, which is where Weyerhaeuser Company comes into this dispute. Weyerhaeuser owns a small piece of the land at issue, but our clients own most of it, and so, of course, this case is very important to them, and Pacific Legal Foundation has been representing them from the beginning.

 

      And so what happened in the beginning, let me start there. So the case is about an endangered frog, what used to be called the Mississippi gopher frog. The federal government declared it endangered in 2001, but failed, pursuant to the Endangered Species Act, failed to do its responsibility of designating critical habitat, land that would be protected from development, what have you, without Fish and Wildlife Service signing off on it because that land would be, under the statute, considered essential for the recovery, for the conservation of the species, in this case, the dusky gopher frog. So in 2001, it's declared endangered. About six or seven years later, Center for Biological Diversity sues and says, "You haven't designated any critical habitat for the frog."

 

      At this point, as I said, the frog is known as the Mississippi gopher frog because it lives in Mississippi, not surprisingly. And the federal government then designates or says by -- proposes a rule where it's going to designate critical habitat in Mississippi, mostly public land, but a few private areas, to conserve the frog—land that would have all the elements necessary to bring this frog back from the brink of extinction. There's about 100 or so when this was originally endangered, 100 or so of these frogs left. So when the government says, "We're going to designate land in Mississippi," some scientists related to CBD say, "No, no, no, that's not enough land. If there's a catastrophe or what have you in Mississippi, and there's nowhere for the frog to survive, there needs to be backup habitat."

 

      And so a scientist named Peckman identified that in Louisiana, in St. Tammany Parish, as I described, on the other side of Lake Pontchartrain, there was some land where, supposedly, more than 50 years ago, the dusky gopher frog had lived. He'd been heard to croak, if you will, on our client's property. So, lo and behold, the federal government comes back around and decides it's going to not just designate the property in Mississippi, it's also going to designate as critical habitat, it's going to cordon off this property from development, the tree farm, a portion of the tree farm that our clients own in St. Tammany Parish.

 

      At that point, the clients say, the Poitevents family say, "Well, hang on there. There's no frog there. It can't live there, and it doesn't make any sense." And so they sue. And any number of arguments, but the main argument, as the case percolated up through the courts, was one that the Endangered Species Act does not give Fish and Wildlife Service the ability to designate as critical habitat land that's neither essential to a species, nor even habitat.

 

      And so let me get those two terms, and these are statutory terms that by and large are not really defined, unfortunately. But habitat, meaning this frog -- if you figure critical habitat is land that's essential to its survival, to its conservation, and then habitat is maybe land that's not necessarily essential, but land where the frog could survive and be conserved. Well, here if you look at that as, say, a Venn diagram, so the critical habitat is a subset of the regular habitat, and I don't mean to throw math at anyone, I became a lawyer to avoid math, but you then have -- in this case, you don't have the critical habitat as part of habitat because, as I said earlier, all the elements necessary for that frog to survive and be conserved don't exist on our clients' property. So if you look at this as a Venn diagram, and you look at the critical habitat bubble, half of that bubble then is outside the habitat bubble. And that, frankly, doesn't make sense under the statute.

 

      Initially, District Judge Martin Feldman in New Orleans said he thought this case involved the Fish and Wildlife Service going too far under the Endangered Species Act, but he wasn't going to say it's unconstitutional, which is one of our arguments of the case. And he wasn't going to say even that the agency had overreached its authority. So even though he thought it was at the outer reaches, thought it showed the kind of lack of sympathy to private property rights that the federal government is notorious for, he was going to have to defer to what the agency did and approve the designation.

 

      It then went up to the Fifth Circuit, and initially, we lose 2-1 arguing the case there. It was saying that, "This is going too far under the Endangered Species Act, and if it's not too far, if the ESA allows the federal government to do this, well then, that violates the Constitution." Judge Owen didn't go there, she just sort of went along with the point that I made about the Venn diagram, that if land's not even habitat for a species, how could it be declared to be critical habitat for that species? The federal government for its part says, "No, no, no," and, of course, the majority in the case said, "No, no, no, with some change to this private property, it could become habitat." And that's really where the battle lines were drawn.

 

      It then goes up to the hearing en banc, and it's 8-6. And Judge Edith Jones writes a very scathing 30 plus page dissent, saying this is effectively way beyond the pale of what Congress would have ever intended. Endangered Species Act, critical habitat designations, go so far as to pointing out that critical habitat was sort of spelled out in the 1978 amendments to the Endangered Species Act, and it was supposed to sort of limit what Fish and Wildlife Service could do when it was designating critical habitat. And her dissent, I would say, caught a lot of people's attention. Number one, it caught Weyerhaeuser's attention and they brought in another attorney to get involved in the case, Tim Bishop, like I said, one of the best lawyers in the country on these type of issues, done many calls for FedSoc in the past. And then it caught the attention of at least four Justices, that dissent from Judge Jones, because we got a grant.

 

      So the case was set to be argued the first day of the term a few months ago. As I recall correctly, it was set to be argued after Kennedy retired before we knew whether we'd have a Justice on the courts, obviously, or whether we even knew who it would be. But it was set as the first argument. And what's interesting about that is if you look at the Court's schedule for the next several weeks, you don't really have any, I would say, typical ideological breakdown that we all know about in terms of this 4-4 or 5-4 split that we often see. But this case, I think, does fall into that typical split.

 

      And so let me turn to today's oral argument. The two questions, I should say, the two questions at issue specifically in the case are, one, whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to a species' conservation. And secondly, an administrative law question, whether agency decision not to exclude an area from critical habitat because of the economic impact of the designation is subject to judicial review.

 

      So the first question I basically just described for you, and that's what the meat of today's oral argument was about. The question mentions unoccupied critical habitat. There's a difference in the statute between occupied critical habitat, which obviously is going to be habitat because the species, in this case, the frog, occupies the habitat, versus unoccupied. And our argument is it's unoccupied because it can't even live there, it's not habitat. And that's what this case is about.

 

      The second question, the administrative law question, is when an agency is told by Congress that it may choose to exclude a piece of property, an area, from critical habitat designation, if it weighs certain factors, including the economic impact, and decides in its discretion -- the secretary decides in the discretion she has to not to designate the property despite the fact that it could be critical habitat, is that even reviewable? So here, the Service recognized that designating this property could have as much as a $34 million economic impact on our clients, Edward Poitevent and his family, and of course, Weyerhaeuser, but still chose not to exclude the property from the critical habitat designation. And we want the courts to say that at least we can -- that we should at least be able to challenge that decision as arbitrary and capricious under the APA, or abuse of discretion.

 

      So those are the two questions at issue. Tim Bishop, as I said, for Weyerhaeuser, got the case underway and was very quickly challenged by Justice Kagan. She took, I would think, sort of what the federal government's position was and also Center for Biological Diversity, who was an intervener in the case. They did not argue, but the idea that ESA is very broad and it's there to protect species basically above everything. And when I say that, I don't mean to sound pejorative, I mean, that's really sort of the point of TVA v. Hill, which is actually what led to some of the ESA changes in 1978 in response to Tennessee Valley Authority v. Hill where the Court said that pretty much protecting species can be more important than any other factor a court could consider. That’s what Congress wanted to say, and of course, ESA was amended.

 

      And so I said, "No, no, no, that's not really what we wanted." And so Tim Bishop started there. Justice Kagan went there and said, "Well, no, I think that ESA does give Fish and Wildlife Service the ability to designate this land because even though it's not, say, optimal for the frog, it can be with some rehabilitation," some terraforming, if you will, and that's not her word, and I think that word would cut against her. But with some change to the property, you could make it habitat for the frog. Say, for example, it has ponds that are necessary for the frog's breeding, ephemeral ponds. It doesn't have upland habitat, and it doesn't have an open canopy forest with ground cover to protect the frog from predators. So she says, "Well, you could change the property and create those things, create the upland habitat and create the ground cover."

 

      And Mr. Bishop says, "Well, sure, in theory you could do anything. You could declare a property across the country, say, for the frog to be critical habitat and then just dramatically change it." And Chief Justice Roberts picked up on that theme, and he went very quickly to sort of a hypo that I've heard quite a bit as this case has been discussed in the media which is if you can declare critical habitat for a species to be an area where the species can't survive without dramatic change to the property, well then, he says, "Why couldn't you just go to Nome, Alaska, and designate some property up there for the dusky gopher frog?"

 

      And by the way, I said it was the Mississippi gopher frog. During this rulemaking when they designated the critical habitat for the dusky gopher frog that was called the Mississippi gopher frog, when they designated it in Louisiana, they decided to change the name of the frog. I guess they felt that would throw us off the case. Mississippi gopher frog would be in Mississippi, but if we change the name to dusky, I guess it's okay that he's now in Louisiana.

 

      Anyway, Chief Justice Roberts says, "Why couldn't we just designate critical habitat for the frog in Alaska?" And there's really not a good answer to that, and if there is a good answer to that question, and we think that does show how far and how much too far this goes. Edwin Kneedler, who argued the case for the Solicitor General's office, didn't have a good answer to that question, and I'll come back to that. So that's really where the lines were being drawn.

 

      You had Justice Kagan saying on one side the ESA is very broad and Fish and Wildlife Service should be able to do this because it's all in the name of protecting species. She, in fact, took the position up front that if you take Weyerhaeuser's argument and say -- our argument, Pacific Legal Foundation -- that we're saying it doesn't matter if this property is essential for the species conservation. The statute, because it's not habitat, would say you can't designate it. And so she drew this as sort of a binary choice, either you're allowed, or the agency is allowed to designate this property as critical habitat or the frog goes extinct. And she says that would be, she says, "counterintuitive," which is obviously her trying to be cute to think that the Endangered Species Act would read to a conclusion that the frog has to become extinct in the name of protecting private property rights. That was ultimately what the implication of her argument was.

 

      Well, Justice Gorsuch took her up on that point and said, "Well, hang on," and Mr. Bishop did, too. But Justice Gorsuch specifically said, "This is not a binary choice. There are many ways under the Endangered Species Act to protect endangered species beyond designating private property to be critical habitat where the species can't even survive." And you also had -- not only did you have Gorsuch sort of parrying with her on that point, you also had Justice Alito parrying with her on that point as well. He rejected Justice Kagan's two binary choices, if you will.

 

      Let me see, as my notes go on -- Justice Kagan then, again, making the government's case for it very well, as Justice Kagan can do. She said, "Look, the Endangered Species Act does not expect habitat to be perfect." And if you even look at the definition of occupied habitat, it talks about the government needing to provide special management of the occupied habitat in order to make sure it's solid, substantial habitat for the species that will conserve it. So her point was you don't have to have optimal habitat, and here, this land has the ponds the frog would need to survive, and that should be enough. And at that point, you have to basically defer.

 

      Again, and I -- interesting, I use the word defer, and there was a lot of back and forth on Chevron deference in the briefs, but there was absolutely no discussion of Chevron deference in the oral argument. But basically, her point was we should defer to the specialists who know what they're doing here to protect the frog, and private property should be subservient to this protection of the frog under the ESA, as she sought.

 

      At this point, Justice Ginsburg jumped in, and she raised a question that maybe would have made sense to be a place to start, which is a standing question. And so the standing issue here, or as she put it, as ripeness, but the idea that if the government designates your private property critical habitat for a frog, at that point, you're not being required to do anything, they're just labeling it on a map, if you will. And so CBD in its brief -- the government did not argue this, but CBD, Center for Biological Diversity, argued that until the property owners want to actually do something that requires, say, a federal permit where the -- let's say it's EPA or Corps of Engineers that has to give a permit to the landowner to use this property, and so the critical habitat designation would require the Fish and Wildlife Service to be brought in on that decision making. Until that happens, her point was, does the client owner now have a ripe case? Does it have standing yet to even challenge the designation?

 

      And Mr. Bishop, I think, successfully responded to that argument, at least I hope he did, which is to say that once that property, and this is what he said, "Once that property is called critical habitat for that frog, there's an immediate hit to the property's value, whether you call it the $34 million hit that the agency itself recognizes it creates when -- if the property isn't able to be used at all, or some lesser number, the bottom line is no one's going to buy that property from Weyerhaeuser, or from Markle Interests, Edward Poitevent and his family and the businesses around his family, knowing about this frog designation. Or, at a minimum, they're going to pay pennies on the dollar because they're going to have to deal with that designation, they know, sometime down the road." I don't think standing is a place where this case will get decided, but it was interesting to hear that Justice Ginsburg at least thought it was worth speaking to.

 

      What else did we have in the case? Let's -- let me jump to the government. I alluded to Mr. Kneedler for the Solicitor General -- well, no. You know what? I want to jump back to Justice Breyer. He appeared to be trying to go for some humor in the argument. He wanted to focus on what it means to be essential, and he said, "Let's say, for example, for the frog, instead of having to change the habitat in the sense of changing the trees that are there from closed canopy to open canopy, what if it was a matter of draining the swamp?" he said. And this was sort of puzzling at first because even though we're in Louisiana, there's really no swamps to speak of in the case, and so there was some puzzlement as to whether he's confused about the administrative record.

 

      But then he kept driving home this draining the swamp issue, so much so that it was clear he was trying to make an implicit reference to President Trump draining Washington D.C. So he kept saying that if you're only going to drain the swamp by six inches, isn't that reasonable, and isn't that reasonable to protect the frog, if that's what it's going to do? And so here, he says, by analogy, draining the swamp or changing the trees is a not a reasonable change that, if Fish and Wildlife Service really wants to protect the frog, isn't that reasonable to ask the private property owner to do?

 

      And that question is a good place to then jump into the government's argument, because the question of isn't that reasonable for the government to ask the property owner to do gets at the heart of this case, which is how can the government force a private property owner to change the property for the frog? And if the government admits it can't do that, then what is the point of designating the private property because it won't conserve the frog. And that's really where Chief Justice Roberts jumped in with Mr. Kneedler. I alluded to that earlier, but it was really -- his questioning started when he went after the government. He did not question Mr. Bishop for Weyerhaeuser. As he said, "They've told you," -- Justice Roberts said to Mr. Kneedler, "The property owners have told you they're not going to make reasonable efforts to change the property." Again, the government wanted to emphasize the change that would be needed would be reasonable.

 

      Of course, we would take the position that these are anything but. These are absolutely not reasonable changes. You're changing a closed canopy tree nursery to an open canopy, and to raise the trees, you don't want to have ground cover because that'll affect and stunt the growth of the trees. Well, here, you need ground cover to protect the frog, so it's not consistent, what the federal government wants versus what the property actually is.

 

      And so when, as I said, when the government lawyer was challenged on what reasonable efforts would be, and challenged to draw a line between what's reasonable versus what designating property for the frog in Alaska, he tried to say, "Well, this -- the conservation needed here for the frog and the changes to the property would be in sync," was his phrase, in sync, which is not a phrase that appeared anywhere in the briefing, "in sync with the way the property owners are already using it." Sort of a -- it seemed to be almost an implication, or I inferred, that he was acting like it would be very easy for the property owner to go along with this, and they're being unreasonable in not cooperating. And Chief Justice Roberts was really having none of that. He jumped on the phrase in sync and thought that was not the way he read the briefs.

 

      Alito as well, in terms of reasonable changes, he jumped on the meaning of the -- what is the meaning of the word reasonable here? Who has to pay? And he made the point, an interesting point for me as counsel for the family land owners, that Weyerhaeuser's a big corporation, but what if this is a family farm? Well, in fact, this is a family farm, and it's been a family farm for 150 years. Edward Poitevent's family started putting together this timberland in St. Tammany Parish in Reconstruction era after the Civil War. And, in fact, they lost the factory they had, the mill they had on the property in the 30s during the Depression, but they were able to survive and hold on to the property, and in the early 50s, were able to reach a 90-year lease with Weyerhaeuser's predecessor on the property.

 

      And so they're a large landowner, but ultimately, a family landowner that loves Louisiana, loves New Orleans, loves St. Tammany Parish, and had plans to develop the property. And then I should mention, St. Tammany Parish and the State of Louisiana both have filed amicus briefs supporting Edward Poitevent, my client, and Weyerhaeuser in the case because, in fact, this area is upland of any property that was affected by Hurricane Katrina, so it's very good, developable area, and they intend to have it developed. Ultimately, it's going to become sort of suburbia to New Orleans. And that was already in the works before the critical habitat designation was reached, which gets at one of the points Bishop made, Mr. Bishop made, about standing, that hundreds of thousands of dollars had already been put into a development plan for this property.

 

      So I know I've been going on for 25 minutes. Let me see if I can hit any other high points. If there's going to be a swing vote, if -- like I said, it looked like it was going to break down on ideological, typical ideological lines. But Justice Breyer asked the government lawyer, Mr. Kneedler, to draw him a line between Chief Justice Roberts' example of habitat for the frog in Alaska and reasonable -- like, show him what is reasonable that doesn't sound like it allows Chief Justice Roberts' extreme hypothetical, and the government failed to do that. So that could be a place where Justice Breyer gets hung up, but at the same time, he made be able to draw the lines, too, or perhaps one of his colleagues will.

 

      What else? I think that's a good summary. I've been going on for about 25 minutes. On rebuttal, just real quickly, Mr. Bishop made the point that it's not in sync, as I was saying, with the property owners' plan for the property to say it can be declared critical habitat, that it's in sync with what they do there already. It would be dramatically different, and it would, like I said, kill off any development plans that the private property owner had for the property.

 

      So I don't want to make any predictions, but there are a couple of alternatives here. I wouldn't be surprised if there's someone who wants to ask about what happens if there's a 4-4 split. Well, there's a couple of alternatives. One, a tie does go to the runner, so if it was a 4-4 split in this case, that means the government would win because they won at the Fifth Circuit, and we wouldn't have a Supreme Court precedent on the question, but it would mean our clients lose and the property -- the designation of the critical habitat survives. So we hope that doesn't happen. Another alternative might be that a nice Justice gets confirmed, and if it is split 4-4, that the Justices decide to have reargument in the case, and I think a lot of people following the case closely think that's quite possible.

 

      Another alternative, I understand it's not against the rules for a ninth Justice to participate, even though the Justice didn't sit for oral argument. I know it's been said that Chief Justice Rehnquist, when he was ill, missed some oral arguments, and in those cases, of course, he was on the Court at the time, but he missed them because of his treatment, and he ended up going back and listening to the audio recordings. So there is precedent for the idea that a Justice can miss oral argument and still be part of a decision. There's precedent for the idea that there could be rearguments, and then, of course, there's precedent, and probably the most obvious precedent, that it could simply -- tie goes to the lower courts with the winner at the lower court being sustained.

 

      So with that, I will open the floor to any questions you all have.

 

Wesley Hodges:  Thank you very much, Mark. It looks like we do have two questions right out of the gate, so let's go ahead and move to our first caller.

 

Mary Nixon (sp):  Hello, Mr. Miller. That was wonderful. I want to say something that goes outside the Constitution, that is outside our beloved Constitution. Today the Justices could only be allowed to look at whoever is competing right in front of them, and that would be property owners or the government's legislation. And the inspiration behind that may be the Center for Biodiversity, but I'm thinking that my life, or at least my great-grandchildren's lives, would depend on a healthy biosphere. And what I'm getting at is that I find our Founding Fathers could never have foreseen that the biosphere could even ever be in danger as a whole, the whole biosphere, so they couldn't place it above the other needs that are in the Constitution.  And that's a missing element in -- I mean, I appreciate your talk was straight on to the case, and that's fine, but outside that case is another matter. And I wouldn't be one to say, "Oh, let's go to any lengths to protect one frog species, but the fact is, we are desperately dependent on the biosphere, and that just can't come into the case except maybe by judicial motive. Do you wish to say anything about that?

 

Mark Miller:  Well, I think you make an excellent point. In fact, it may be a little bit of a left turn for me to jump to this point, but I -- your comments remind me of a part of the oral argument, which is this idea that it's binary here, that either this land gets designated critical habitat for the frog or it goes extinct. And Justice Gorsuch was making the point that, in fact, the Endangered Species Act allows any number of ways for the federal government to protect endangered species. And so to your question, in terms of the healthy biosphere, if the federal government thinks that it absolutely has to have this property as critical habitat for this frog to survive and be conserved, brought back from the brink, if you will, well then, Section 5 of the Endangered Species Act would allow the federal government to buy the property from the willing seller.

 

      And in fact, this came up, and the government took the position, "Well, there's been no conversations about that." But in fact, that was not an accurate representation of the facts of the case, whether or not Mr. Kneedler -- and I know he certainly was not intentionally misrepresenting anything. He's an excellent lawyer for the government. But in fact, in reality, as a lawyer, he comes in at the SG's office late in the game. PLF's been involved for years. These property owners have made it clear that if the federal government wants to talk to them about buying the land so that the federal government can then put in the millions of dollars to terraform the land and turn it into dusky gopher frog critical habitat, well, perhaps they should make an offer.

 

      And instead, the federal government is instead using a different part of the Endangered Species Act that I would posit to you, perhaps, overreaching in the way it uses it in trying to say, "We don't have to buy the land from you. We don't have to have an agreement and work with you. Rather, we can kind of force you to agree, force you to accommodate what we want." And I think that Congress recognized that there could be situations like this, but the Fish and Wildlife Service is trying to use the wrong tool to protect the species. Instead of working with the landowner and perhaps buying the land, they're trying to squeeze the landowner into doing what the government wants.

 

      And that really gets at the heart of what Pacific Legal does, and so we're certainly in favor of conserving the species and protecting the biosphere, as you said. But you have to do it within the constitutional requirements that our Founding Fathers created, and as it's been amended since then.

 

Mary Nixon:  Thank you. That's perfect.

 

Wesley Hodges:  Thank you very much, caller. Let's move now to our second caller.

 

Caller 2:  You answered a little bit of my question because I haven't looked at the statute, but even if the government decides they don't want to pay for buying the land, is it possible to have a reverse condemnation?

 

Mark Miller:  I think that you could see an argument made down the road, should the habitat designation be upheld, which I hope we don't ever have to cross that bridge, but yes, I think you're right that any landowner in this position, that sees itself losing millions and millions of dollars, would argue there was an inverse condemnation, there was a taking here, a regulatory taking. But remember, I mean, you'd be under a sort of a Penn Central framework, and so the federal government could try to take and take the position that, "Well, we're going to allow you to use your property a little bit, just enough to defeat a Lucas or a Penn Central taking."

 

      So, while that's a nice idea, as a lawyer who litigates those kind of things, it's sort of the bread and butter of what Pacific Legal does, I wouldn't have much -- I don't want to say anything that would hurt a case down the road, but we can't put our faith in the courts when it comes to Penn Central takings because too often, the courts will say that, "Yeah, you just are accommodating what the government needs and you're not being asked to do too much, reciprocity of advantage here, and hey, you're conserving the frog, you're going to use your property a little bit. You don't get to do what you really want to do with your private property, but you get to do something, so you should just be happy about that." And so, recognizing that that's oftentimes where these Penn Central kind of takings cases go, I'm optimistic that this result won't require us to go there.

 

Caller 2:  Thank you.

 

Wesley Hodges:  Thank you, caller. We do have one more question in the queue.

 

Caller 3:  Hi. Thank you. My question really relates to the judicial review issue and the Chevron deference issue. And I apologize, I haven't had a chance to read the briefing, but was the Chevron deference issue addressed in the briefs, and could you maybe elaborate a little bit?

 

Mark Miller:  Generally, on the Chevron deference issue, it was not argued about at all. I don't think the lawyers thought that the Justices were going to use this case as a place to get into Chevron deference and then sort of the oral argument did seem to bear that out. By and large, the argument about Chevron here was that the statute is clear, so we're not getting to second step of Chevron, and so that's -- and the way the argument went, the argument basically was about what is the meaning of habitat. And Justice Kagan took the position that the regular dictionary definition of habitat, since the statute doesn't designate it, doesn't define it, shouldn't apply because we're talking about critical habitat. And Mr. Bishop was taking the position as Pacific Legal did in the briefing that, "No, no, no, we are looking at dictionary definition. Congress knew what the word meant when it used it 40 years ago, and so we should be stuck with that."

 

      Now, on the second question presented, this is interesting because Pacific Legal Foundation put quite a bit of effort into that second question presented in the briefing, with the question being when can the agency's decision not to do something be reviewable because here they decided not to exclude our client's property from the critical habitat designations. So they didn't take an affirmative action, they chose not to do something. And we thought, going into the argument, that the Justices may focus there in the sense that it's an eight Justice Court, and these Justices have shown over and over that they do agree, left and right, on the idea that the Court should get to review agency decision making and whether it be, as I said, the Sackett v. EPA case, six, seven years ago, or Hawkes, or U.S. Army Corps of Engineers v. Hawkes, two years ago, the Court in both those decisions said unanimously, and then in NAM, last year as well, the waters case, judicial review is something that left and right seem to agree. These are unanimous decisions.

 

      So here, the second question presented in the case seemed like a way for the eight Justices to find a way to all agree, but in fact, when the rubber hit the road this morning, the Justices were not interested in that question. Tim Bishop, the lawyer for Weyerhaeuser, actually steered, very explicitly steered the questions to that second issue. He actually said, "I want to discuss the second issue," right after having gotten a question on the first issue, and the Justices really didn't have much for him. It then became the government's turn to argue and they, Mr. Kneedler, did not field even one question on the second question presented in judicial review of agency decision making in this context.

 

      And so, really, the case became what the newspapers made the case to be about, which is about protecting a species under the Endangered Species Act. And so what I mean by that is there's a very dry issue in the case where I think there could be agreement, and then there's the hot-button issue of we have to protect the frog at all costs, and that's what Congress would have wanted. And so it's easy, it's an easier argument, perhaps, to get into, but I thought at the Supreme Court, perhaps, you would see more interest in the harder question, not the harder question, but the more technical question because of the possibility for agreement, but that's not how it actually played out.

 

Caller 3:  Well, thank you. And I think that that question has a much broader implications across the executive agencies.

 

Mark Miller:  Well, and that's why Pacific Legal Foundation likes that issue so much, and we've had some luck with it at the high court because it cuts both ways. If you want to question the agency in the courts, sometimes the left is going to like that, and sometimes the right is going to like that.

 

Caller 3:  Right.

 

Mark Miller:  It's not a question of conservative or liberal. It's when is the agency going too far, and when you might not like the administration for four years, and then you might like it the next four years, but you want to be able to question the administration when you don't like it. When the king does something we don't like in the United States, we should have the ability to question the king. That's really what it boils down to.

 

Caller 3:  Exactly. Well, thank you.

 

Wesley Hodges:  Thank you, caller. Let's go ahead and move to our next caller.

 

Caller 4:  You may have sort of addressed it in the last response, but was there any discussion of the nonreviewability of the cost estimate?

 

Mark Miller:  Mr. Bishop for Weyerhaeuser tried to bring it up. He tried to get into that question because, as I said, we thought that was a way for the Justices to reach some consensus, but the Justices showed no interest in that second question. Now, maybe they'll recognize when they get back there and discuss the case that it is a place that should lead to common ground and  -- because there was no common ground, it seemed to me, to be found in the oral argument, other than perhaps Justice Breyer, but I think that's also eye of the beholder, you kind of see what you want to see.

 

      So I hear some positive remarks from Justice Breyer, but he also said some things where he just basically said, "Well, this is the agency's job. They make these decisions, not judges." He didn't say that verbatim, but he got at that very early on, that this is -- the agency has discretion, this is what it does, and the implication being who are we to question. So, but on that second question, the nonreviewability of the economic impact, Mr. Bishop tried to bring it up, but Justices had no interest in it, and the government didn't even address that issue that I can recall at all.

 

Caller 4:  Thanks.

 

Wesley Hodges:  Thank you. Let's turn to our next caller.

 

Caller 5:  Hi. It's kind of encouraging, almost, that the two sides were taking the extremities of the argument. I actually went to a conference where the topic of it was the use, the weaponization, of the Endangered Species Act to stop development, specifically in the Flint Hills of Kansas, and, ironically, for wind power. But was there -- did anyone address the use of it truly as a weapon?

 

Mark Miller:  And I agree with you. I have heard at conferences, certainly, I can't put my finger on when, but I've heard that idea, specifically the use of the statute, weaponization of the ESA, to attack development. Nobody put it quite that way. I would say it was still brought out, implicitly, by Mr. Bishop explaining that the landowners—so Weyerhaeuser and my clients—had already had a development plan in process with the local county—they're called a parish in Louisiana—and the state to develop the land. There's a highway that cuts through, and this is going to be in the future, at least it's intended to be, a bedroom community, suburbs, and with this label, though, with the designation, that may never come to pass.

 

      And that's where Mr. Bishop was allowed to get into that, or at least the door opened for him to get into that, not so much in the second question presented, because, as I said, they didn't really get to it, but rather, when Justice Ginsburg asked about standing. And he made the point that, number one, government estimates, the government itself estimates a $34 million loss to the property owners. And then, number two, there's also the sunk costs, which Mr. Bishop brought out very well, which they've already gone through a development plan with the local parish, the county, to the tune of several hundred thousand dollars.

 

      So there's no question that Chief Justice Roberts, if he was on the phone -- well, who knows what he would say, but he would certainly understand that. He certainly took the lead in questioning what was being done here through the ESA, where it's not remotely going to help the frog unless you dramatically change the property, and the property owner says he doesn't want to do those changes, and doesn't intend to, well then, really all you're doing with the designation is, as you say, is using it to stop development, and it doesn't save, doesn't do anything for the frog. So it is, in a sense, basically being weaponized. And I think there's no question that Justice Alito -- excuse me, Chief Justice Roberts, and Alito, and Gorsuch, based on that questioning, I think they get that.

 

Caller 5:  From the argument, are you encouraged at all that we might have an opinion that leaves us with something that's legally as opposed to factually based to address all these?

 

Mark Miller:  You know, from the opinion --

 

Caller 5:  -- Will the [inaudible crosstalk 42:28] kind of preclude issues?

 

 

Mark Miller:  From the oral argument, it's sort of tough to predict. If Breyer were to say he thinks this is a bridge too far, then yes, you could get a good decision that addresses legal issues as well as just the facts of this particular case. A great example I heard in some of the discussions of the case is if you can do this, then let's find a deer that's endangered and declare Manhattan to be critical habitat for the deer because, of course, we could change Manhattan back to when that deer used to live there. And so I don't think that's a tough line to draw where government can say unoccupied critical habitat -- it has to be habitat.

 

      And it really gets at -- and I'd encourage everyone to look at Judge Jones at the Fifth Circuit in her dissent from the denial of rehearing en banc. She drew -- she actually, she put into her opinion two Venn diagrams that demonstrate the difference between what the statute seems to contemplate, which is that critical habitat has to be a subset of habitat -- excuse me -- as opposed to what the government's position was, which is critical habitat could somehow be nonhabitat. And that's just simply not logical, and it's not what Congress would seem to have intended when you read the statute.

 

      And so do I -- am I encouraged from the oral argument, though? Not particularly. Certainly, I think there's four Justices who would like to say this is out of bounds and makes -- draws some legal lines, but the idea that there's a fifth vote there for that, I think at best it's going to be Justice Breyer wearing the Justice Kennedy hat, if you will, in terms of being the tie breaker, and we know how that usually goes. When Justice Kennedy was a tie breaker, you'd get a very intriguing concurrence or what have you. Like, say, in Rapanos, that maybe makes things more complicated rather than less. And so a property owner, say, in that case, Rapanos, wins but the rest of us are left with a difficult decision to discern and that we're still now litigating a decade later in terms of fallout. And so here, if that were to happen, conceivably you could see that from Justice Breyer where he throws in with those who want to make a rule that all of us could sort of follow, a bright line rule, but it's difficult to discern how that rule gets applied.

 

Wesley Hodges:  Thank you. Let's go ahead and move to our next caller.

 

Tony Francois:  Hi. Good afternoon, Mark. This is Tony Francois. I should let the listeners know I am one of Mark's colleagues at Pacific Legal Foundation on this case. I did not hear the very beginning of your general discussion, and so I thought it might be, if you hadn't addressed it, interesting to discuss in the first question presented in the case -- well, what we've mainly been talking about here is is this properly designated as critical habitat. And in the briefing, there are two subquestions to this. Is it habitat, and then because it's unoccupied habitat, is it essential for conservation? And that question of what does essential mean in the statute occupied a lot of the briefing, but I was struck that that got almost, in fact, it might have gotten absolutely no discussion today in oral argument. And I wondered if you had had the same take on that, and if you had any thoughts on kind of why that didn't draw any questions from the bench.

 

Mark Miller:  Yeah, I definitely agree with you, Tony, that in terms of the briefing, the Justices really, I think, only focused on really what's habitat, which is really where Mr. Bishop targeted his oral argument. And maybe coincidentally or not, that's really where, say, the media focused on with the case. And so the Justices just, it seemed to me, followed Mr. Bishop's lead. And so the question of essential, other than Justice Breyer bringing it up and saying, "What's essential?" and then he said, "Isn't there a question of reasonableness here?" and of course, he made his draining the swamp joke. But no, I would agree with you. The briefing really didn't seem to play much of a role here, other than the question of can you designate unoccupied critical habitat that's neither essential nor habitat for the species, but they mainly focused on habitat, not essential.

 

      And in fact, you could say Justice Sotomayor, in terms of her understanding of the briefing, she made a remark about Mr. Bishop doesn't represent the property owners, which is, of course, true, but went so far as to say they're not even part of the case. I think she said something to that effect. I'd want to see the transcript. But obviously, that was not true, and it did make me wonder whether she got confused because of the multiple, the two petitions.

 

      I -- the second question presented in another thing we could mention, as I mentioned a few minutes ago, and he didn't even get into that. Mr. Bishop tried to bring them to that topic, but they showed -- they didn't question (mark) that I can recall, and they showed no interest in it, even though I thought it was a place where they could find -- forge consensus and perhaps get a lesser impact decision, but a decision that nevertheless would have been good for our clients and good for property owners, the idea that we can review -- the courts can review arbitrary and capricious decision making and that decision making is not immune from suit in this context. So I was sort of nonplussed by the way the argument went other than to say it seemed to break down the way you would expect in an Endangered Species Act case.

 

Wesley Hodges:  Thank you, Tony, for your question. Let's go ahead and turn to that question.

 

Mary Nixon:  Hello, it's Mary Nixon again about the biosphere. Now that you mention perhaps abandoning Manhattan for the sake of a deer, Professor E. O. Wilson, who's the inventor of the word biodiversity, has a new book out called Half-Earth, I think that's the name, Half-Earth, in which he says that humans are going to have to high-tail it out of about half of the earth's land in order to let nature regroup, and so maybe in the 22nd century we'll hear about the case.

 

Mark Miller:  Well, that sort of reminds me in the 1970s, there were scientists who thought we were going to overpopulate the earth, and so I just don't know how much credibility, without knowing who you're talking about, I would give to that. I think that we've shown that, in fact, in First World nations, we are more protective of the environment than anyone else is, by far. The environment is certainly much better protected in the United States than you would find in your typical Third World nation. In fact, we spend incredible amounts of money, rightfully so, to make sure we bring back endangered species, to make sure we protect our water, to make sure we protect our oceans and the Gulf of Mexico and what have you, the Great Lakes. So I guess I don't -- I'm not a pessimist when it comes to man's ability to live in the environment and protect the environment.

 

Mary Nixon:  I'm going to send you the book, Half-Earth. Thank you.

 

Wesley Hodges:  Thank you very much, caller. Seeing no immediate questions from the audience, Mark, I turn the mic back to you. Do you have any closing remarks for us before we finish today?

 

Mark Miller:  Well, Wesley, first of all, thank you very much again to The Federalist Society for allowing me to speak about the case, and I would just encourage the listeners to follow the case and see what happens. I think there's a good chance this case gets reargued, and I guess it depends on how long it takes for the ninth Justice seat to get filled. Of course, there are only eight seats at the Court today. Not only was there only eight Justices, but there was no empty chair, if you will, it was just the eight Justices. So once we get that ninth Justice, keep an eye out for Weyerhaeuser and see what the Justices decide to do in terms of perhaps ordering reargument. And then I can come back and have another Courthouse Steps and tell you how that goes.

 

Wesley Hodges:  Absolutely, Mark. Well, on behalf of The Federalist Society, I'd like to thank you for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining. This call is now adjourned.

 

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