In a Summer 2018 News Update we addressed a number of proposed changes to rules under the Endangered Species Act ("ESA") that would reduce compliance requirements on landowners. A recent decision from the United States Supreme Court clarified the proposed change that relates to the criteria for critical habitat designations.

Weyerhaeuser Company v. U.S. Fish and Wildlife Service went before the Supreme Court after the U.S. Fish and Wildlife Service ("FWS") designated critical habitat for the dusky gopher frog in an area uninhabited by the frog in over 50 years. In a unanimous opinion, the Court held that to designate an area as critical habitat under the ESA, the area must be habitat for the endangered species. This nuanced decision reversed the Fifth Circuit Court of Appeals, which originally determined that an area could qualify as critical habitat so long as it is "essential for the conservation of the species" even if the endangered or threatened species could not presently survive on the land. The case has been remanded to the Fifth Circuit to interpret the term habitat - specifically whether habitat includes "areas where the species could not currently survive."

The dispute began after Louisiana landowners challenged FWS's critical habitat designation because, due to land alterations, the frog could not currently survive on the land. Critical habitat designations can be problematic for landowners because the designations usually hinder or place conditions on development of the land. The Weyerhaeuser Timber Company, which owns some of the disputed Louisiana land and leases the rest, sought to dissolve the critical habitat designation in the Eastern District Court of Louisiana because, for the dusky gopher frog to survive on the land, the land would have to be altered to restore a canopy longleaf pine forest. Additionally, the designation could cost Weyerhaeuser up to $33.9 million because of the restrictions on development of the site.

A secondary issue in the case was whether the former Secretary of the Interior's ("Secretary") decision to designate critical habitat is beyond the scope of a court's review. There is a strong presumption in favor of reviewability by the courts and the highest court again affirmed that longstanding tradition. The Supreme Court held that the ESA is not written to preclude judicial review because the courts can evaluate whether the Secretary adequately considered "the economic impact, the impact of national security, and any other relevant impacts, of specifying any particular area as critical habitat," including whether the "benefits of exclusion outweigh the benefits of designation." On remand, the Fifth Circuit will decide whether the Secretary adequately considered the relevant impacts of designation.