Supreme Court decision reached on ESA critical habitat for the dusky gopher frog

On Tuesday, November 27, the Supreme Court issued its decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, which involved the designation of an unoccupied timberland area as critical habitat for the dusky gopher frog under the Endangered Species Act (ESA). The Court in a unanimous, 8-0 decision held that:

  1. only “habitat” of the species is eligible for designation as critical habitat; and
  2. decisions not to exclude areas from critical habitat are judicially reviewable.

In reaching these determinations, the Court ruled in favor of Weyerhaeuser and the individual landowners which had brought the cert petition. While narrow, the holdings are nonetheless important guideposts to the determination of areas that can be designated as critical habitat and also provide a clear avenue by which parties can challenge a decision by FWS or NMFS not to exclude specific parcels or areas from critical habitat.

Writing for the Court, Chief Justice John Roberts explained that satisfying the statutory definition of unoccupied critical habitat (i.e., the area is essential for the conservation of the species) is not dispositive, and an area cannot be designated as critical habitat unless it is also habitat for the species. While establishing this habitat requirement, the Court noted that the ESA provides no baseline definition of “habitat.” On remand, the Fifth Circuit will consider what constitutes habitat, and determine whether the unoccupied area designated for the gopher frog satisfies the habitat standard.

On the second issue regarding reviewability of a decision not to exclude an area from designation, the Court rejected FWS’ arguments that the use of the word “may” in ESA Section 4(b)(2) gives the Secretary unreviewable discretion regarding the exclusion decision. Instead, the Court pointed to the basic presumption of judicial review afforded by the Administrative Procedure Act, recognized that exceptions to review of agency decisions are “quite narrow,” and found that a decision not to exclude an area is subject to judicial review regarding whether the decision was arbitrary, capricious or an abuse of discretion. In remanding to the Fifth Circuit, the Court also explicitly directed that the scope of judicial review includes both the assessment of the designation’s costs and benefits and the ultimate decision not to exclude.

While the Fifth Circuit will further consider the habitability and judicial review components, the Services may also take action to address these issues. For example, the Services anticipate issuing a proposed rule in April 2019 to clarify the regulations regarding consideration of the benefits of including or excluding areas from critical habitat. The Service could also implement additional policies or pursue further rulemaking to address the definition of habitat.

Source: National Endangered Species Act Reform Coalition (NESARC: