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November 27, 2018

Supreme Court Decides Weyerhaeuser Company v. U.S. Fish & Wildlife Service

On November 27, 2018, the Supreme Court of the United States decided Weyerhaeuser Company v. U.S. Fish & Wildlife Service, No. 17-71, holding that (1) an area is eligible for designation as a “critical habitat” under the Endangered Species Act only if it is “habitat” for the species; and (2) decisions whether to exclude land from a critical-habitat designation are reviewable by federal courts for abuse of discretion.

This case concerns the “dusky gopher frog,” a frog that is three inches long, has dark coloring, and lives underground. It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. It spends most of its time in burrows and stump holes in longleaf pine forests that used to cover the southeast United States. But more than 98 percent of those forests have been removed and have been replaced with urban development, agriculture, or closed-canopy forest that is inhospitable to the frog. By 2001, the known wild population of the dusky gopher frog had dwindled to a group of 100 in a single pond in southern Mississippi. That’s when the Environmental Protection Agency designated the dusky gopher frog as an endangered species. The Fish and Wildlife Service (the Service) later attempted to establish three other naturally occurring populations of the frog in the same area.

Listing a species as “endangered” requires that the EPA Secretary designate the “critical habitat” of the species. The Endangered Species Act (ESA) defines a “critical habitat” in pertinent part as (i) specific areas within the geographical area occupied by the species that include features “essential to the conservation of the species”; and (ii) areas outside the geographical areas occupied by the species that are “essential for the conservation of the species.” Once a geographical area is designated as a “critical habitat,” there are additional constraints on the federal government’s ability to effect changes to the designated area, which includes granting permits for private land development.

In 2010, the Service proposed to designate all four locations with dusky gopher frog populations as critical habitats, because all four locations had the features the Service deemed “essential to the conservation” of the frog. But because these locations were all close to one another, there was still a risk that all populations could be wiped out through a catastrophic event. To prevent that risk, the Service proposed to designate unoccupied land as a “critical habitat” for the frog. That site—called “Unit 1”—was the last site outside of Mississippi where gopher frogs were last seen, in 1965. The Service determined that Unit 1 met the definition of unoccupied critical habitat because its rare, high-quality breeding ponds and distance from existing frog populations made it essential for conservation of the species.

The Weyerhaeuser Company owned part of Unit 1, and it (and others) brought a lawsuit seeking to vacate the designation of Unit 1 as a “critical habitat.” Weyerhaeuser contended that Unit 1 could not be a critical habitat because the frog could not survive there, as its survival depended on replacing the timber plantations on Unit 1 with an open canopy longleaf pine forest. Weyerhaeuser also challenged the Service’s decision not to exclude Unit 1 from the frog’s critical habitat because of the economic impacts of modifying Unit 1 to allow the frog to survive there. The district court upheld the designation, and the United States Court of Appeals for the Fifth Circuit affirmed. Both courts reasoned that (1) Unit 1 could be a “critical habitat” even if it required some modification of Unit 1, and even if the frog could not currently survive there; and (2) the Secretary’s decision not to exclude Unit 1 from the frog’s critical habitat was unreviewable by federal courts.

The Supreme Court granted certiorari to consider (1) whether “critical habitat” under the ESA must also be “habitat”; and (2) whether a federal court may review an agency decision not to exclude a certain area from critical habitat because of the economic impact of such a designation. On the first issue, it reasoned that a “critical habitat” must also be a “habitat” because of “how adjectives work”—“they modify nouns.” Thus, it held that an area is eligible for designation as a “critical habitat” under the ESA only if it is first a “habitat” for the species.

On the second issue, the Court applied the strong presumption favoring judicial review found in the Administrative Procedure Act to hold that the Secretary’s decisions about whether to exclude land from a critical-habitat designation are reviewable by federal courts, under an abuse-of-discretion standard. This decision made sense given that Weyerhaeuser was complaining about things that are often reviewed by federal courts—complaints that an agency did not appropriately consider all of the relevant factors set forth in a statute.

Because the lower courts did not properly interpret the term “habitat” and did not have occasion to review the Secretary’s decision not to exclude Unit 1 from the frog’s critical habitat, the Court vacated and remanded for further proceedings.

Chief Justice Roberts delivered the opinion for a unanimous court. Justice Kavanaugh took no part in the consideration or decision of the case.

Download Opinion of the Court.

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