Access flooding information on Disaster Resources.

August 24, 2017

Western Growers Signs onto Amicus Brief Asking for Supreme Court Review of Critical Habitat Decision

Western Growers, along with the non-profit Coalition for a Sustainable Delta (CSD) and the San Luis & Delta Mendota Water Authority, recently filed an amicus brief in Markle Interests v. U.S. Fish and Wildlife Service

In the brief, the signors urged the U.S. Supreme Court to grant review of the petition of Markle Interests, a timber company based in the Southeast. By a vote of 2-1, a panel of the United States Court of Appeals for the Fifth Circuit affirmed a decision by the Fish and Wildlife Service (USFWS) to designate areas as “critical habitat” for the dusky gopher frog that the frog could not previously inhabit. They are considered critical habitat areas because they contain a single biological or physical feature necessary for the survival of the species. 

The brief argued that the habitat of a species must contain the combination of attributes necessary to support that species, and that designation of areas as critical habitat, that cannot support the species, is contrary to the plain language and legislative history of the Endangered Species Act. The brief also pointed out that large swaths of land across the West are already designated as critical habitat and that these would assuredly grow if USFWS was permitted to designate non-habitat as habitat. The U.S. Chamber of Commerce, 18 states, and a number of other entities provided amicus support for Supreme Court review, although the aforementioned brief offers a uniquely western and agricultural perspective. Western Growers and CSD are represented by, and the brief was drafted in part by, attorneys Paul Weiland and Robert Thornton with Nossaman LLP’s Irvine office.

It is anticipated that the court will decide whether to take the case in late fall 2017.

For more information, contact Jason Resnick at (949) 885-2253.