Blog by: Erica Joan Radermacher

To a layperson or an environmentally-conscious attorney, a case of an adorable but threatened animal being saved from big bad business is an all-too-familiar tale. Stories of the northern spotted owl as the named plaintiff in Northern Spotted Owl v. Hodel, red wolves in Gibbs v. Babbitt, and the infamous snail darter in Tennessee Valley Authority v. Hill dot the landscape of decisions throughout Natural Resource law and often frame the issues to be one sided: animals over everything.[i] Oversimplification of the issue of conservation can lead to agency overreach onto the rights of private landowners, which is the central issue of Skipper v. United States Fish and Wildlife Service.[ii]

The Skipper family has owned forestry land in Alabama since 1902.[iii] The Skippers have long-managed timber operations on over ninety thousand acres; they grow high quality pine and hardwood saw timber by utilizing rotation age targets between forty and sixty years, performing thinning as well as prescribed burns to prioritize the health of the forest ecosystem.[iv] From 1956 to 2016, the Skipper family took part in Alabama’s Scotch Wildlife Management Area (WMA) which involved opening their land to public recreation and state conservation efforts (even assisting in the state’s recovery of white tail deer).[v]

The United States Fish and Wildlife Service (FWS) published a rule in 2020 which designated a portion of the Skipper’s land as critical habitat for the black pinesnake.[vi] This designation came in the wake of merely four noted sightings of the black pinesnake in the entire twenty years prior to the listing date, as well as one sighting in a turkey trap in 2015.[vii] As a result of this critical habitat designation, a family that had diligently worked to preserve habitats was left crushed under the foot of federal agency action that altered the value of their land.[viii] “They put a noose around our production,” said Gray Skipper of the FWS’s action against his working forest.[ix] The results of a critical habitat designation can immediately reduce the value of land because of the public perception of the burdensome regulations.[x] The Skipper family has also withdrawn their lands from the WMA program and does not have plans to rejoin.[xi] Furthermore, future development on land after it is designated is limited because any action would requiring federal permits or funding would be subject to consultations with the FWS.[xii]

While the Endangered Species Act (ESA ) gives the FWS power to list a species as endangered or threatened, designate critical habitat for such species, and make efforts to conserve those species, later amendments to the Act noted its vast power and aimed at limiting those mechanisms thereby prioritizing fairness for landowners. Despite this, the FWS remains a target for litigation based on similar instances of a “ghost” species before, such as in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, where the FWS made a designation in Louisiana where there was again, very little if not no evidence of the presence of the dusty gopher frog.[xiii] In Weyerhaeuser, the court noted that the statutory process of the ESA outlines a standard against which the agency’s action of designating critical habitat will be judged; this finding made the agency’s actions reviewable and thus able to be ruled arbitrary and capricious, as the ruling found.[xiv]

In the opinion of Skipper v. United States Fish and Wildlife, the Southern District of Alabama reasoned that the record did not support the services designation of the Skipper land as “occupied” critical habitat and state that such designation is unsupported by observational data thereby falling short of the standard required by the ESA.[xv] This opinion shows that FWS cannot claim that lands are home to a species without evidence and furthermore, cannot claim that critical habitat designations have no effect on property owners.[xvi] It is crucial that courts place checks and balances on such agencies that overstep their statutory provisions and encroach into the rights of individuals and their privately owned lands.

While the situation of the Skipper family is unfortunately not unique, this case and the precedent set before it in Weyerhaeuser, represent a step toward more checks on federal agencies and limitations on ESA designations of critical habitat.[xvii]

[i] Northern Spotted Owl (Strix Occidentalis Caurina) v. Hodel, 716 F.Supp 479 (W.D. Wash. 1988); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).

[ii] Skipper v. United States Fish and Wildlife Service, --- F.Supp.3d ---, 2025 WL 2421229 (Aug. 21, 2025).

[iii] Illegal critical habitat designation punishes family’s voluntary conservation efforts, Pacific Legal Foundation, https://perma.cc/K966-47FQ.

[iv] Complaint, Skipper v. United States Fish and Wildlife Service, --- F.Supp.3d ---, 2025 WL 2421229 (Aug. 21, 2025).

[v] Illegal critical habitat designation punishes family’s voluntary conservation efforts, Pacific Legal Foundation, https://perma.cc/K966-47FQ.

[vi] 50 C.F.R. Part 17 (2020).

[vii] Chris Bennett, Conservation Nightmare as Landowner Fights Feds Over Property Regulations and Phantom Snake, Ag Web (October 30, 2024), https://perma.cc/4KS4-7JBS.

[viii] Bennett, supra note 7.

[ix] Bennett, supra note 7.

[x] Bennett, supra note 7.

[xi] Bennett, supra note 7.

[xii] Bennett, supra note 7.

[xiii] Weyerhaeuser Co v. U.S. Fish and Wildlife Service, 586 U.S. 9 (2018).

[xiv] See id.

[xv] Skipper v. United States Fish and Wildlife Service, --- F.Supp.3d ---, 2025 WL 2421229 (Aug. 21, 2025).

[xvi] Court rules for Alabama landowners in fight with Fish and Wildlife Service, Pacific Legal Foundation (Aug. 21, 2025), https://perma.cc/EXE4-EPDC.

[xvii] Complaint, Skipper v. United States Fish and Wildlife Service, --- F.Supp.3d ---, 2025 WL 2421229 (Aug. 21, 2025).

[TF1]You should add the (FWS) acronym here since you begin using it later on.

[TF2]I understand this acronym refers to the Endangered Species Act in the title but it would be helpful to the reader if you spelt it out again before using the acronym.