Federal agencies lay the groundwork to ignore the Supreme Court
The Supreme Court ruled in Weyerhaeuser that land classified as "critical habitat" by the U.S. Fish and Wildlife Service under the Endangered Species Act (ESA) must be livable for the species the Service intends to conserve.
However, the Service suddenly abandoned the "habitat" definition criterion that it had adopted in order to satisfy Weyerhaeuser.
It did this by undermining the Supreme Court's ruling in Weyerhaeuser, disobeying the separation of powers guaranteed by the Constitution, and reinstating a system of arbitrary habitat classifications.
The ESA gives the Service the authority to list species as vulnerable or endangered and to identify areas as "critical habitat" for particular species.
Over 1,500 acres of the Poitevent family's Louisiana property were designated as vital habitat for the endangered dusky gopher frog by the Service ten years ago.
The family might have missed out on millions of dollars in lost economic advantage as a result of that classification restricting their capacity to use their land.
The Supreme Court left it up to the lower court or the Fish and Wildlife Service to define "habitat" in accordance with the ESA's language because the term is not defined in the ESA.
In other words, it appears that the Service made it up as it went along, imposing a cautious regulatory concept that was unrelated to the wording of the Act.
And Weyerhaeuser demonstrates how this rule may result in overbroad and unjustified habitat designations, potentially inflicting serious financial loss to property owners.
By defining the word, the Service constrained its own capacity to make case-by-case rulings while also giving the regulated public crucial direction on how it would administer the ESA.