Weyerhaeuser Co. v. U.S. Fish & Wildlife Service
Issues
Did the United States Fish and Wildlife Service properly determine that currently unoccupied and uninhabitable land constitutes critical habitat for the dusky gopher frog under the Endangered Species Act, and is this decision subject to judicial review?
The Supreme Court will determine whether the United States Fish and Wildlife Service has overstepped its authority under the Endangered Species Act of 1973 by designating land that is currently uninhabited and inhospitable for the endangered dusky gopher frog as "critical habitat" for such frog populations. The Supreme Court will also consider whether the agency’s decision in this matter is subject to judicial review. The Fifth Circuit held and the Fish and Wildlife Service now argues that the agency's designation was in accordance with the discretion afforded to the agency by Congress, and that the Endangered Species Act does not authorize judicial review. The Court’s decision in this case will have implications for property rights, federalism, and agency discretion.
Questions as Framed for the Court by the Parties
- Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation.
- Whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.
The dusky gopher frog is an endangered species whose population once spread across forests from Louisiana to Alabama. Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 827 F.3d 452, 458 (5th Cir. 2016). However, habitat degradation has reduced the frog's population range to a single part of Mississippi.
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Additional Resources
- Ariane de Vogue, Supreme Court Jumps on Dusky Gopher Frog Case, CNN (Jan. 22, 2018)
- Michael Phillis, High Court Will Hear La. Frog Habitat Fight over ESA Powers, Law 360 (Jan. 22, 2018)
- Jonathan Wood, An Opportunity for Arbitrage, PERC (May 22, 2018)