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.