Principal Jamie Auslander (Washington, DC) was quoted in a November 27 article in Law360 titled "High Court Hints at Skepticism of ESA Reach in Frog Ruling." The article focuses on a recent unanimous Supreme Court decision to vacate a Fifth Circuit affirmance and increase scrutiny for critical habitat designations by the U.S. Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA).

The Supreme Court vacated and remanded lower court rulings that had upheld FWS’s designation of critical habitat for the dusky gopher frog to include private property currently unoccupied by the frog and lacking the features that FWS deemed essential for its conservation. According to an opinion written by Chief Justice John Roberts, the court unanimously found that the ESA requires that “critical habitat” first be “habitat” for a species, though it did not further define the term "habitat.".

The court also expressed skepticism regarding the FWS's power to expansively protect land under the ESA. "There was sufficient discomfort across the bench to render [the unanimous decision]," Jamie stated. "Every member of the court was at least somewhat troubled by the lack of bounds if the decision was upheld as rendered — where would be the limits of critical habitat designations? I think that was a common concern across the bench."

Click here for the full article (subscription required), and click here for B&D's coverage of the Supreme Court decision.