October 2, 2018

ELI Member Webinar

The rare Dusky Gopher Frog—a small frog species with a remaining population of approximately 250—has recently become the subject of national attention with the Supreme Court being scheduled to hear a pivotal case in October 2018. Weyerhaeuser Company and Markle Interests v US Fish and Wildlife Service will determine whether the Endangered Species Act of 1973 constitutionally allows the U.S. Fish and Wildlife Service to designate areas that a species does not currently occupy as critical habitat. The plaintiffs argue that this Obama-era rule is barred by the ESA because the land is currently uninhabitable to the frog, but the DOJ recently argued that the rule is “consistent with the Act's understanding that 'conservation' may require habitat improvements to promote a species' recovery.” Notably, the designation dictates what governmental acts can occur on the land, but not what private acts can occur, nor does it allow the forcible importation of a species. As more species join the endangered species list, this ruling could determine whether critical habitat designations will be based on historical geographic distribution, regardless of whether species may or may not currently inhabit it.

With a substantial possibility of greater limitations on nationwide conservation work, questions arise about the potential for public-private partnership efforts in conservation, habitat protection, and the interpretation of the Endangered Species Act. How can collaboration bring the for-profit sector into conservation efforts of territory previously unlisted as critical habitat? What would be required for private entities to reconcile their interests through partnerships with government agencies? This ruling could have lasting implications for the implementation of ESA, and more broadly, habitat conservation as a whole.

Expert panelists explored the case and its implications for comprehensive conservation and the continued feasibility of public-private partnerships in conservation. Participants gained insight into the legal history of conservation through the scope of the Endangered Species Act, the challenges of and potential for increased public-private partnerships, and judicial interpretations of the lower court rulings and dissents. What can be expected by the Supreme Court, from challenges to the proposal, to the designation of private land as critical habitat? This seminar dove into the legal structure surrounding conservation, consideration of relevant issues raised by the Dusky Gopher Frog’s fight for survival, and the challenges of effective conservation when it is perceived to conflict with private lands.

Lindell Marsh, Executive Director, Center for Collaboration-in-Governance (Moderator)
Jennifer Biever, Partner, Hogan Lovells US LLP
Mark Miller, Senior Attorney, Pacific Legal Foundation
Jason Rylander, Senior Staff Attorney, Defenders of Wildlife

ELI members will have access to a recording of this session (usually posted w/in 48 hours). If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.