SCOTUS Remands “Dusky Gopher Frog” ESA Case to the Fifth Circuit


On November 27, 2018, the U.S. Supreme Court issued a ruling vacating and remanding the U.S. Court of Appeals for the Fifth Circuit’s decision in Weyerhaeuser Company v. U.S. Fish and Wildlife Service. The Court of Appeals had affirmed the District Court’s ruling that the U.S. Fish and Wildlife Service (Service) properly designated, under the Endangered Species Act (ESA), a large tract of land located in Louisiana as a critical habitat suitable for the endangered Dusky Gopher Frog, which currently is only found in Mississippi. This is an important ruling under the ESA, and it will be very interesting to see what happens when the case is returned to the Fifth Circuit.

The Louisiana land is owned by the Weyerhaeuser Company and a group of family landowners, who have challenged these decisions of the Service and the lower federal courts. Weyerhaeuser Company v. United States Fish and Wildlife Service was argued on October 1, 2018. Justice Kavanaugh did not participate because he was not on the Court at the time of the oral argument.The Court’s decision, written by the Chief Justice, was unanimous, and remands the case to the Fifth Circuit where that Court of Appeals must determine whether the Service’s administrative findings designating the Louisiana land as a critical habitat were correctly made. Because the Fifth Circuit “had no occasion” to interpret the term “habitat,” and the Court holds that an area can only be designated to be a “critical habitat” if it is, first of all, a “habitat,” as defined by the law, that Court of Appeals must determine if the Louisiana land at issue is a habitat.

In addition, the Fifth Circuit is directed to consider, “in the first instance,” whether the Service’s assessments of the economic costs and benefits resulting from this critical habitat designation were arbitrary, capricious or an abuse of discretion, as provided by the Administrative Procedure Act (APA). Importantly, the Court determined that this decision was not unreviewable under the APA as being committed to agency discretion.

The Dusky Gopher Frog has been listed as an endangered species under the ESA for many years, and the Service has determined that it cannot survive only in its current habitat in Mississippi. Accordingly, the Service decided to designate the petitioners’ 1500 acre tract in Louisiana as an unoccupied critical habitat that could be modified to be suitable for this species, although it has not been seen in Louisiana for many years. The Court notes that a critical habitat designation could trigger federal permitting requirements, such as the Clean Water Act, if the land is to be developed.