Pub. 8 2018 Issue 3

14 AT THE CENTER OF UTAH INDUSTRY T he scope of the federal government’s power to designate private lands as critical habitat for endangered species will be in the spotlight on October 1, when the U.S. Supreme Court hears arguments in Weyerhaeuser Company v. U.S. Fish & Wildlife Service. If the Supreme Court upholds the lower court’s expansive view of federal regulatory power, private landowners with land deemed valuable for future endangered species recovery may be subject to regulation even if the particular species is neither found nor capable of surviving on the property in question. Because development of mineral properties often involves evaluation of impacts to the Endangered Species Act (ESA)-listed or candidate species, the Court’s decision will provide important precedent for determining how ESA regulations will be applied to future mine development in the United States. The dusky gopher frog, a rare amphibian found only in the low country of Mississippi, is listed as endangered under the federal ESA. In 2012, the Fish and Wildlife Service (FWS) designated 1544 acres of private timberland land in Louisiana as critical habitat for the frog, even though it was undisputed that no dusky gopher frog had been seen on the property for more than 50 years. The Weyerhaeuser Company pointed out that not only were no dusky gopher frogs found in the state of Louisiana, but the subject property (designated as Unit 1) did not contain two of the three necessary biological characteristics of frog habitat. Although small ponds found on the property were suitable for breeding habitat, the frog required open uplands and forest, while Unit 1 was covered with dense timber. The FWS’ action on the dusky gopher frog played out in the context of Obama administration efforts to drastically increase the scope of critical habitat designations under the ESA. In 2016, FWS amended its definition of critical habitat to allow consideration of habitats that are representative of the historic geographical distribution of a species, and further allowed designation of lands without any of the physical or biological features that a particular species needs. LITIGATION OVER OBSCURE FROG MAY HAVE PROFOUND IMPLICATIONS FOR MINERAL DEVELOPMENT By John W. Andrews, Snell & Wilmer