A recent unanimous decision by the U.S. Supreme Court, in Weyerhaeuser Co. v. USFWS, announced two important holdings related to the scope of the Endangered Species Act (ESA).
Applicable law
Under the ESA, when an animal is listed as endangered, the government designates certain areas as being “critical habitat.” The ESA defines critical habitat as the specific areas within the geographical area occupied by the species where there are physical or biological features essential to the conservation of the species and which may require special management considerations, and specific areas outside the geographical area occupied by the species upon a determination by the interior secretary that such areas are essential for conservation of the species.
The statute does allow for an exclusion from the designation if the interior secretary finds that the benefits of exclusion outweigh the benefits of designation, so long as the exclusion would not result in the extinction of the species.
Background
In 2001, the dusky gopher frog was listed as endangered and, in 2010, the Department of the Interior designated critical habitat for the frog, including a 1,544-acre area in Louisiana (Unit I). In 2010, Unit I was a closed-canopy timber plantation, which was not a viable place for the frogs to live. Although no dusky gopher frogs had lived on Unit I for over 50 years, Interior listed this area as critical habitat.
As part of the designation, the government conducted a required economic impact study. The land was owned partially by a timber company and partially by a family who leased their portion out to said timber company. While the critical habitat designation would not affect the timber production, the owners had invested in future plans to develop the site.
The critical habitat designation certainly could impact such plans if federal permits would be required for such development. For example, if a Clean Water Act dredge and fill permit were required before filling any wetlands on the land, the U.S. Army Corps of Engineers could not issue such permit without consulting first with the USFWS. Estimates showed if the USFWS requested the COE to deny the permits altogether, this would cost the landowners approximately $33.9 million. This, the USFWS found, was not disproportionate to the benefit of designation, and announced it would not exclude the Unit I from the designated critical habitat.
Litigation
The Unit I owners sued, arguing their land was not “habitat” at all since the frog could not live on the property under its current conditions. If the land was not habitat, it could not be “critical habitat,” they reasoned. Further, the landowners argued that even if the property were critical habitat, the exclusion should have applied because the economic benefits outweighed the designation benefits.
The lower-level courts sided with the government, with the U.S. Court of Appeals for the Fifth Circuit stating that in order to be “critical habitat” there was no “habitability requirement.” That appellate court also held the USFWS determination of whether the benefit exclusion applied was not reviewable by a court. The landowners appealed to the U.S. Supreme Court.
Opinion
Justice John Roberts wrote the opinion for the court, ruling 8-0 (Justice Brett Kavanaugh did not participate) to reverse and remand.
First, the court considered “critical habitat” and held that in order to be critical habitat, an area must first be habitat. In looking to the language of the ESA, the court noted the provision requiring such designation states the secretary must “designate any habitat of such species which is then considered to be critical habitat.” Thus, under the ESA, only the habitat of a species is eligible for the designation a critical habitat.
The term “habitat” is undefined under the act. The landowners argue that in order to be habitat, the species must be able to currently survive on the property. The USFWS argues habitat can include areas where, with some modification, the species could be supported, even if that may not currently be the case. Because the lower courts did not address this issue, the Supreme Court sent the case back for determination of whether Unit I qualifies as “habitat.”
Second, the court considered whether judicial review of the exclusion provision was allowed. The court explained that because the ESA requires the interior secretary to consider the economic impact and benefits prior to making an exclusion decision, the statute itself allows for a standard by which a court could review the secretary’s action.
This means the decision was not committed to agency discretion and could be reviewed for abuse of discretion.
Again, because the lower court did not review the secretary’s decision, the Supreme Court remanded the case to determine whether the analysis and decision not to exclude Unit I was arbitrary, capricious or an abuse of discretion.
Take-away points
This case does provide at least some limitation on the scope of the critical habitat designation under the ESA.
We now know that in order to be critical habitat, land must first be habitat. Exactly what that limitation is remains to be seen and will depend on how the lower court makes a ruling based on the facts in this case. We also know landowners who may disagree with the interior secretary’s economic analysis and exclusion determination do have a right to seek judicial review. 
PHOTO: First, the court considered ‘critical habitat’ and held that in order to be critical habitat, an area must first be habitat. In looking to the language of the ESA, the court noted the provision requiring such designation states the secretary must ‘designate any habitat of such species which is then considered to be critical habitat.’ Getty Images.
Tiffany Dowell Lashmet
- Assistant Professor and Extension Specialist – Agricultural Law
- Texas A&M AgriLife - Extension Service
- Email Tiffany Dowell Lashmet
