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June 14, 2019 Articles

Putting the Habitat Back in Critical Habitat

SCOTUS recently clarified that only the habitat of an endangered species is eligible for designation as “critical habitat” under the Endangered Species Act.

By Nicole Blevins

The U.S. Supreme Court recently clarified that only the habitat of an endangered species is eligible for designation as “critical habitat” under the Endangered Species Act (Act). Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No. 17-71, 2018 U.S. LEXIS 6932, at *15–16 (Nov. 27, 2018). Unoccupied areas may qualify, but the secretary of the interior is not authorized to designate an area as critical habitat unless it is also habitat for the endangered species. The Court also confirmed that the decision of the U.S. Fish and Wildlife Service (Service) not to exclude property from a critical habitat designation is judicially reviewable.

Critical Habitat Designation

The controversy in Weyerhaeuser arose from the Service’s inclusion of a 1,544-acre timber plantation as critical habitat for the dusky gopher frog. The frog has not been seen at the site for approximately 45 years, and the site lacks the open-canopy forest in which the frog lives. However, the site has other features considered essential to conservation of the frog. The Service designated the site as critical habitat to guard against the risk that the frog’s small existing range may be affected by extreme weather, disease, or other local events. 

Upon listing a species as endangered, the secretary of the interior must designate the critical habitat of a species. The Act defines critical habitat to include “specific areas within the geographical area occupied by the species . . . on which are found those physical or biological features (I) essential to the conservation of the species; and (II) which may require special management considerations or protection.” 16 U.S.C. § 1532(5)(A). Critical habitat also includes “specific areas outside the geographical area occupied by the species . . . upon a determination by the Secretary that such areas are essential for conservation of the species.” Id. Once a geographical area is designated as critical habitat, conditions are placed on the federal government’s authority to effect physical changes to the designated area, whether on its own or by facilitating private development.

Weyerhaeuser: Case Details

The property owners in Weyerhaeuser argued that the site cannot be critical habitat because the frog could not survive there—specifically, the frog’s survival would require replacing the closed-canopy timber plantation with an open-canopy longleaf pine forest. The Service argued that habitat includes areas like the critical habitat site that would require some degree of modification to support a sustainable population of a given species.

In addition, one property owner challenged the secretary’s economic analysis and resulting decision not to exclude the site from designation. The Service must consider the economic impact of a critical habitat designation and may exclude any area if the benefits of exclusion outweigh the benefits of inclusion. The designation of the site substantially decreased its market value by calling future development into question.

The district court upheld the Service’s critical habitat designation, and the U.S. Court of Appeals for the Fifth Circuit affirmed. Both courts reasoned that the site could be a critical habitat even if the frog could not currently survive there without modification of the land. In addition, the lower courts did not consider the property owners’ challenge to the Service’s economic analysis based on the conclusion that such an assessment was solely at the discretion of the agency and not reviewable by federal courts.

Weyerhaeuser: Supreme Court Ruling

The Court granted certiorari to consider (1) whether “critical habitat” under the Act must also be “habitat” and (2) whether a federal court may review an agency decision not to exclude a certain area from critical habitat because of the economic impact of such a designation.

On the first issue, the Supreme Court remanded the case to the Fifth Circuit to consider the meaning of the term habitat. At the outset, the Court observed that “statutory language cannot be construed in a vacuum, and the term ‘critical habitat’ must be considered in its statutory context.” The Court further held that, “[a]ccording to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’” Because the Fifth Circuit concluded that critical habitat designations were not limited to areas that qualified as habitat, the Court remanded the case to the appellate court to interpret the statutory term and to then assess the Service’s administrative findings with respect to the site.

On the second issue, the Court ruled that the Service’s assessment of the economic impact associated with a critical habitat designation is “the sort of routine dispute that federal courts regularly review” and is thus subject to judicial review. Accordingly, the case was remanded to the Fifth Circuit to determine, if necessary, whether the Service’s cost-benefit analysis was flawed in a way that rendered its decision arbitrary and capricious or an abuse of discretion.

Chief Justice Roberts delivered the opinion for a unanimous court. Justice Kavanaugh did not participate in considering or deciding the case.

Nicole Blevins is senior counsel at the Denver, Colorado, office of Beatty & Wozniak, P.C.

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