Kerry McGrath explains the potential precedent that comes with the U.S. Supreme Court’s decision to hear a landowner’s challenge to a Fifth Circuit ruling upholding a U.S. Fish and Wildlife Service decision to designate as “critical habitat” for an endangered frog 1,500 acres of private property that the frog could not inhabit without major modifications to the land. In Law360, Kerry says, “This kind of ruling sets a troubling precedent because it has virtually no limiting principle and it could pave the way for designating any part of the United States as critical habitat.” She says if the ruling is upheld, it would suggest the government has sweeping power. Kerry warns, “That potential, if the Fifth Circuit decision is upheld, creates a question of: How far could that get pushed? And there isn't a limiting principle to show where the line is. That is the big concern.”

Read High Court Could Rein In ESA's Reach In Frog Habitat Fight, Law360, February 2, 2018. (Subscription)