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November 27, 2018 Practice Points

SCOTUS Remands Endangered Species Act “Critical Habitat” Case to Fifth Circuit

By Sanford Hausler

On November 27, 2018, the U.S. Supreme Court issued its unanimous decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service. This case raised two questions for review. The first was whether the secretary of the interior could designate as the “critical habitat” land on which the endangered species (in this case, the dusky gopher frog) could not currently survive. The second was whether the secretary erred in failing to exclude the petitioner’s property, even if it was a “critical habitat.” The Endangered Species Act allows the secretary to exclude property that would otherwise constitute a “critical habitat” if the benefits of exclusion outweigh the benefits of designation.

The Court first stated that for a property to be a “critical habitat,” it must be a habitat. The Court of Appeals for the Fifth Circuit had held that critical-habitat designations under the statute were not limited to areas that qualified as habitat. Because the lower court had had no occasion to interpret the term “habitat” or to assess the U.S. Fish and Wildlife Service’s administrative finding as to the petitioner’s finding, the Supreme Court vacated the judgment and remanded the case to the Fifth Circuit to consider these questions in the first instance.

As to the second question, the Supreme Court held that the secretary’s decision could be reviewed for abuse of discretion. Because the Fifth Circuit had not considered whether the secretary’s decision not to exclude the petitioner’s property was arbitrary, capricious, or an abuse of discretion, the Supreme Court remanded the case to the Fifth Circuit to consider this issue, if necessary, in the first instance.

The decision was written by Chief Justice Roberts. Justice Kavanaugh took no part in the consideration or decision of this case.

Sanford Hausler is of counsel with Cox Padmore Skolnik & Shakarchy LLP in New York, New York.

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