ESA Case Update- Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018)

The U.S. Supreme Court recently vacated and remanded a case involving the critical habitat designation of the dusky gopher frog, a mid-size frog about three inches long that can be black, brown, or gray in color, giving the frog its “dusky” name. The frog gets its “gopher” name because it spends the majority of its time underground in burrows or stump holes in open canopy forests. One of the frog’s most recognizable and endearing traits is that it uses its front legs to cover its eyes when it feels threatened.

The dusky gopher frog, which was listed as endangered under the Endangered Species Act (ESA) in 2001, currently only lives in Mississippi, but its historic range included Louisiana and Alabama as well. However, the U.S. Fish & Wildlife Service (FWS) designated land in Louisiana, known as Unit 1, as critical habitat based on the presence of ephemeral ponds, which are needed for the frog to breed, and the property’s distance from other frog populations.

When critical habitat is designated on private property, it does not directly limit the landowner’s use of the property. However, critical habitat is subject to Section 7 consultation under the ESA. Thus, if a landowner seeks federal funding or a federal permit for an action that may affect designated critical habitat, the landowner would have to work with the agency through the Section 7 consultation process. This process can be costly, time intensive, and restrictive as to what can be done on the property.

Although Unit 1 contains a timber operation run by Weyerhaeuser, the critical habitat designation was not expected to have a direct effect on those operations. However, Weyerhaeuser and the other landowners of the property were concerned about the impacts a critical habitat designation could have on future plans to develop the area. Unit 1 is part of the New Orleans metropolitan area, and the landowners plan to develop the site in the future. Since Unit 1 may have wetlands, the landowners are concerned any development would require a federal Clean Water Act permit, which could trigger Section 7 consultation.

As a result, the landowners of Unit 1 challenged the critical habitat designation. First, the landowners argued that the designation was unlawful since the frog could not currently live in the closed canopy forest of Unit 1, since the frog lives in open canopy forests. Second, the landowners argued that the FWS should have excluded Unit 1 from critical habitat due to the economic impact of the designation on the area, which was estimated to be up to $33.9 million. The Fifth Circuit found for the FWS on both grounds, holding that there is no habitability requirement for critical habitat under the ESA and that the FWS’s decision not to exclude Unit 1 was a discretionary decision that is not reviewable under the Administrative Procedure Act (APA).

The Supreme Court recently vacated and remanded the Fifth Circuit’s decision, leaving open the question of whether the frog’s critical habitat in Louisiana will remain for a little while longer. The Court first ruled that critical habitat must be habitat for the species. Since “habitat” is not defined under the ESA, the Court remanded to the Fifth Circuit to determine if Unit 1 can be considered habitat for the frog. Second, the Court found that the decision whether to exclude Unit 1 due to economic impacts is reviewable by the courts. Once again, the Court remanded to the Fifth Circuit to determine whether FWS’s decision not exclude Unit 1 was arbitrary and capricious under the APA.

With the remands, we will have to wait and see how the Fifth Circuit decides the fate of Unit 1. Read more about the Weyerhaeuser case in the January 2019 issue of SandBar.