Case No. 17-71 | 5th Cir.
Preview by Emma Hutchison
Weyerhaeuser Co. v. United States Fish & Wildlife Service presents the Court with two questions: First, the Court must determine whether the Endangered Species Act (“ESA”) authorizes the U.S. Fish & Wildlife Service (the “Service”) to designate an area of land as “critical habitat” even if an endangered species does not live there and could not do so without modifications to the land. 16 U.S.C. § 1533(a) (2018). Second, the Court must decide whether a refusal by the Service to “exclude [an] area from critical habitat” is subject to judicial review. 16 U.S.C. § 1533(b)(2).
An endangered species called the dusky gopher frog (the “frog” or “frogs”) is only known to exist in Mississippi. Initially, the Service designated the frog’s current habitat in Mississippi as the frog’s sole critical habitat. After receiving criticism from the scientific community, the Service expanded the frog’s critical habitat to include a parcel of land in Louisiana, owned by the petitioner. Both parties agree that the frog has not been seen in the area in the last fifty years and that there are no frogs currently living in the area. However, the petitioner’s land was historically a breeding site for the frog. Although the area lacks a necessary feature of the frog’s habitat, an open canopy forest, the land contains a rare feature that the frog needs to breed: ephemeral ponds, i.e., ponds that are filled with water during some times of the year and dry during others.
The petitioner filed suit against the Service. The district court ruled in favor of the Service and the Fifth Circuit affirmed in a divided panel decision.
The petitioner challenges the Service’s decision to classify the land as critical habitat. The petitioner argues that the land cannot be critical habitat because it is not the current habitat for the frog and the frog could not survive there without modifications to the land. Moreover, the petitioner warns that if agencies are allowed this high level of discretion, valuable, private land all over the country will be designated critical habitat, despite the land not housing any endangered species.
The Service argues that the ESA empowers it to extend the critical habitat outside of the current habitat if it is “essential for the conservation of the species.” 16 U.S.C. § 1532(5)(A)(i), (ii). This determination is made “on the basis of the best scientific data available” and the Service may consider “the economic impact” of critical habitat designations. 16 U.S.C. § 1533(b)(2). Although the Service estimated an economic impact of up to $34 million, it determined that this “critical habitat” designation was essential because disease or severe weather in the region could destroy the frogs’ current habitat and, as a result, the frogs themselves.
The Fifth Circuit held that the “critical habitat” designation is discretionary and is consequently subject to Chevron deference, meaning it can only be overturned if “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). The Court’s decision here will be highly impactful for property owners and federal agencies alike.