Critical Habitat’s ‘Private Land Problem’: Lessons from the Dusky Gopher Frog


The Endangered Species Act provides for the designation as “critical habitat” of habitat deemed “essential” for conservation of listed species. To understand the incentive effects of critical habitat designations, this Article examines the designation for the dusky gopher frog, which included private land unoccupied by the frog and which reached the U.S. Supreme Court. It argues that critical habitat designations can penalize landowners for conserving habitat features, thereby disincentivizing habitat maintenance and restoration. Market-based alternatives that reward landowners for habitat features would provide the needed incentives for private landowners to protect and restore habitat.

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