March 03, 2020

Weyerhaeuser Co. v. Fish and Wildlife Service


Does the Endangered Species Act Prohibit Designation of Private Land as Unoccupied Critical Habitat When the Species Does Not Inhabit the Land? 


At a glance, this case is about preserving the habitat of an endangered species, the dusky gopher frog, by a federal designation of 1,544 acres in Louisiana as a critical habitat and essential to the conservation of the species. The land, referred to as Unit 1, is owned by plaintiffs below, Markle Interests, P&F Lumber Company, and PF Monroe Properties. Petitioner Weyerhaeuser is a paper manufacturing company that owns part of the land and leases the rest to grow and harvest timber. Its lease will be up in 2043. The land is very attractive to developers, and the landowners claim the designation of the habitat will cost them as much $30 million and United States Fish and Wildlife Service (FWS) didn’t consider that. The federal courts’ very jurisdiction to review the case is at issue. At its core, this case is about who gets to decide whether the property is critical habitat for the dusky gopher frog and whether the economic consequences of the designation are unreasonable: the FWS or a federal court.

Docket No. 17-71
Argument Date: October 1, 2018
From: The Fifth Circuit
by Barbara L. Jones
Minneapolis, MN


  1. Does the Endangered Species Act prohibit designation of private land as unoccupied critical habitat when the species does not inhabit the land? 
  2. Is the agency decision not to exclude the land from critical-habitat status subject to judicial review?


The dusky gopher frog, formerly known as a Mississippi gopher frog, was designated as endangered in 2001, but the critical habitat was not designated until 2012. The area designated as critical habitat, Unit 1, is in Louisiana, although the frog currently is found only in Mississippi. The Endangered Species Act (ESA) defines critical habitat as either occupied or unoccupied. As it applies to this case, the latter is used when the presently occupied habitat is inadequate to ensure the conservation of the species.

The land was designated as critical habitat after peer review, public comments, and a public hearing. The United States Fish and Wildlife Service (FWS), responsible for implementing the ESA, determined that the economic impact of the designation was unclear.

After FWS said there was no disproportionate cost resulting from the designation, the landowners sued under the Commerce Clause, the ESA (16 U.S.C. § 1531 et seq.), and the Administrative Procedure Act (5 U.S.C. § 701 et seq.). The suits of several plaintiffs were consolidated, and the Center for Biological Diversity and the Gulf Restoration Network were permitted to intervene as defendants.

The district court upheld the FWS designation on summary judgment, saying that even though the frog did not occupy Unit 1, it was reasonable to find the area essential to the conservation of the frog. It also said that the agency had the discretion whether or not to exclude the habitat based on economic impact, and that the decision is not judicially reviewable because there are no manageable standards for a reviewing court to apply.

The Fifth Circuit affirmed in a divided vote, saying that the FWS interpretation of “essential” was reasonable and entitled to Chevron deference. (Chevron deference means that courts must defer to an agency’s authoritative and reasonable interpretation of ambiguous language found within a statute that it administers. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). The court subsequently denied en banc review, with six judges dissenting from the denial.


The case consists of two main arguments. The petitioner and the landowners first argue that Unit 1 is not a critical habitat as a matter of law. They then assert that the court erroneously said that the agency decision is not subject to judicial review. 

Counsel generally rank their arguments in their briefs in order of importance.

Weyerhaeuser argues that Unit 1 is not critical habit as a matter of law because the frog cannot live there without a radical change in land use and areas where the animal cannot survive are not habitat. If it is not habitat, it cannot be critical habitat. “Congress intended that designations generally must be narrower than, or at most coextensive with, ‘the entire geographical area which can be occupied’ by the species.” 16 U.S.C. § 1532 (5) (c). (This is demonstrated charmingly in the landowners’ brief with Venn diagrams.)

Continuing, the definition of critical habitat requires habitability if the land is occupied by the species, petitioner argues. If the land is not occupied, as here, the definition is narrower, focusing on essential “areas” of the habitat rather than features. Areas that lack the features essential to support the life of the species cannot be essential for conservation, the petitioner says. “There is nothing ‘essential’ about land on which a species cannot survive,” it argues (emphasis in original).

The landowners have no intention to restore the property to a frog-friendly status, petitioner notes.

Other concerns about the FWS designation are centered on states’ rights. Federal regulation of the land impinges on the state’s usual dominion over the land in the state, raising constitutional questions that the court can avoid with a narrow reading of “critical habitat,” petitioner argues. The ruling also represents an extension of agency power with no legal basis, and the FWS can find another way to conserve the land, petitioner says.

Petitioner’s second argument is over judicial review of designation rulings. The Fifth Circuit said it could not review the ruling because the law includes no standards of review. But case law, including Bennett v. Spear, 520 U.S. 154 (1997), says a court may review the agency for failure to make an economic analysis. The Fifth Circuit also could have used the familiar abuse of discretion standard to determine that the district court erred in refusing to consider the costs to the landowners of the designation of Unit 1, petitioners argue. The Supreme Court is asked to find an abuse of discretion or at the least remand the case for judicial review under that standard.

“FWS abused its discretion in not excluding Unit 1 from designation. FWS did not consider all costs. And it did not sufficiently explain its one-sentence conclusion that tens of millions of dollars in costs imposed by the designation are not disproportionate to the ‘biological’ benefits,” petitioner asserts.

The landowners, respondents before the Court, filed a brief in support of the petitioner completely in accord with Weyerhaeuser’s brief. With respect to the critical-habitat designation, the landowners sum up the argument thus: “The Service’s interpretation of ‘essential’ as including land that cannot now support the species and never will absent vast and very expensive modifications that will not be made, and which is remote from the other 11 units of designated habit, all of which actually provide currently suitable habitat, stretches the statutory term far beyond its breaking point and is…ineligible for Chevron deference.” At the very least, the Court should use the canon of constitutional avoidance to sidestep a dispute over whether the critical habit designation exceeds congressional Commerce Clause authority.

They also argue that the ESA, the Administrative Procedures Act, and general principles of administrative law provide a foundation for judicial review. They remind the Court that Bennet says that the duty to engage in economic analysis of the critical impact designation is mandatory and reviewable for an abuse of discretion.

FWS indicates that if there is confusion, it may be because the terms habitat, critical habitat, and occupied habitat are not concisely defined in the ESA but have been developed through use. Critical habitat refers to certain physical features that are essential to the species’ survival, but habitat is not defined.

The FWS says critical habitat is a subset of habitat but that the petitioners have conflated the statutory concepts of critical habitat and habitat because the property designated as critical habitat reasonably can be restored to serve as critical habitat even if the frog is not there now.

“[T]he Service has developed its understanding of ‘habitat’ through case-by-case application,” it explains. Therefore, the term habitat should be viewed expansively and may be used even if the location needs repair or maintenance. According to the FWS, the term may include places where the species does not presently live; habitat need contain only one feature essential to the species.

The determination that Unit 1 contains a habitat reflects the FWS’s longstanding, common-sense interpretation, which is the best understanding of the statutory term and merits deference, it says. Similarly, the FWS’s determination that the area is essential for the conservation of the frog because it is the best such habitat within the frog’s historical range is reasonable. “Critical habitat is a subset of habitat and is statutorily defined to include both ‘areas within the geographical area occupied by the species’ and ‘areas outside the geographical area occupied by the species.’” 16 U.S.C. § 1532(5)(A)(i)-(ii) (emphasis added).

Continuing, FWS argues that “the protection of endangered and threatened species ‘requires an expertise and attention to detail that exceeds the normal province of Congress (cite omitted) and the proper interpretation of its terms presents ‘complex policy choices[s].’” Chevron deference is invoked. “The fact that this standard is difficult to satisfy, however, does not mean that it is impossible,” FWS concludes.

Respondents also reject the constitutional avoidance problem, noting that the designation of critical habitat does not directly impose any legal obligations on private parties, but does require agency consultation, an area properly overseen by Congress.

The FWS also argues that the decision not to exclude the property from critical habitat is unreviewable. While the statutory mandate that the FWS consider the economic impact is reviewable, that statute goes on in its second sentence to say that the FWS “may” or “may not” exclude an area from habitat, but it does not provide standards for when the FWS “should” or “must” exclude the property. “The statute thus provides no meaningful standard against which to judge the agency’s exercise of discretion,” the FWS asserts. That means agency action is committed to agency discretion.

“The permissive phrasing, lack of standards, and commitment to the Services’ determin[ation] in the second sentence of Section 4(b)(2)—particularly when read in light of the mandatory provisions in the first sentence—‘fairly exudes deference’ and reflects Congress’s judgment that the Service itself should determine when exclusion is appropriate. Webster v. Doe, 486 U.S. 502, 600 (1988),” respondents conclude.


There are three zones of significance in this case: the environmental zone of the three-inch frog, the economic zone of the landowners who insist they will lose money by virtue of this designation, and the jurisprudential zone. The last is composed of sub-zones of, in no particular order, agency “overreach,” Chevron deference to agencies, and federalism. 

Twenty-seven amicus briefs are filed in this case, in addition to the briefs of the three parties discussed above, and in addition to the briefs filed in 2017 regarding the certiorari petition.

It is worth emphasizing that the actual language of the act and the definition of habitat precede any discussion by the parties of Chevron deference, federal jurisdiction over state property, or anything else. Instead, the briefing is about the kind of habitat an endangered species needs and only then about who gets to decide, an “overreaching agency” or a federal judge.

The environmental and economic arguments are far from clear cut. For one thing, another 170 acres are in trust in Mississippi for the frog, and the habitat in Louisiana is not ideal. To make the Louisiana habitat ideal would require investment that the property owners cannot be compelled to make.

The economic interests vary. The economic loss to the landowners is an open question. The “$30 million” loss figure that is bandied about is actually the FWS analysis that the economic loss ranges from $0 to $30 million over 30 years, depending on what is done with the property. The designation does not necessarily stop future development or land use, although some news sources say otherwise.

And not all economic interests fall on one side of the line. “Environmental regulations like the ESA can provide economic benefits to business. We write to make the economic case for biodiversity and stewardship,” say an amici group of small business owners.

There is no doubt that the government is viewed by some as overreaching. The district court said so, although it granted the relief FWS sought. It said the FWS’s actions were remarkably intrusive with all the hallmarks of governmental insensitivity to private property. The landowners observe, “Scholars call the ESA the ‘pit bull’ of environmental law...It may be a pit bull, but here the [FWS] took the ESA and its critical habitat provisions off the leash Congress put on it...”

These views were echoed by 12 amici who claim the FWS went too far in designating the acreage a critical habitat.

St. Tammany Parish, where the land is located, calls itself the primary refuge of Hurricane Katrina refugees. It argues that the critical-habitat designation imposes unwanted land use restrictions, potentially endangers citizens with forest fires necessary to maintain the habitat, and taxes a parish already dealing with an influx of new residents.

On its website, the Pacific Legal Foundation, which represents some landowners, states, “If property can be designated a ‘critical habitat’ for an animal that cannot live on it, there are no limits on how much private land can be roped off by federal decree.”

That perceived overreaching leads directly to the issue of state’s rights, judicial review, and Chevron deference. Judicial review is essential when dealing with a pit bull agency, argues amici Coalition for a Sustainable Delta. “Congress adopted the ESA to serve an important purpose, but implementation of the ESA often comes with substantial societal costs. Blind deference to agency legal determinations can lead to a circumstance where (as here) agency authority is unmoored from the language and intent of the ESA,” the Coalition writes. 

No one is asking the Court to overrule Chevron, the Cato Institute argues. But the lower courts’ decisions are a pond too far. “By ignoring key parts of the ESA in regulating Unit 1 as the gopher frog’s ‘essential’ critical habitat, however, the FWS stretched an already overextended Chevron deference past its limits. The lower courts then abdicated their responsibility to enforce the limits of deference, demonstrating how deference to agencies frustrates the separation of powers.”

The petitioners may have already won at least a partial victory. A letter from the solicitor general informs the court that a new rulemaking process regarding critical-habitat designation has been started, but the new procedures would have only prospective effect. 

Barbara L. Jones is an attorney and editor of Minnesota Lawyer newspaper. She can be reached at 651.587.7803 or

PREVIEW of United States Supreme Court Cases 46, no. 1 (October 1, 2018): 4–7. © 2018 American Bar Association


  • For Petitioner Weyerhaeuser Company (Timothy S. Bishop, 312.701.7829)
  • For Respondents United States Fish and Wildlife Service, et al. (Noel J. Francisco, Solicitor General, 202.514.2217)
  • For Intervenor-Respondents Center for Biological Diversity and Gulf Restoration Network (David Thomas Goldberg, 650.498.8229)


In Support of Petitioner Weyerhaeuser Company 

  • Alabama and 17 Additional States (Andrew L. Brasher, 334.242.7300)
  • American Exploration & Production Council (Andrew Jacob Turner, 202.955.1658)
  • American Farm Bureau Federation (Tyson Clinton Kade, 202.298.1800)
  • Building Industry Legal Defense Foundation, et al. (Paul J. Beard II, 916.498.3354)
  • Cato Institute (Ilya Shapiro, 202.842 .0200)
  • Cause of Action Institute (John Julian Vecchione, 202.603.7372)
  • Chamber of Commerce of the United States of America (Aaron Michael Streett, 713.229.1234)
  • Coalition for a Sustainable Delta (Daniel J. O’Hanlon, 916.321.4500)
  • Center for Constitutional Jurisprudence (Louis A. Chaiten, 216.586.7244)
  • Energy and Wildlife Action Coalition (Svend Arnold Brandt-Erichsen, 206.395.7632)
  • National Association of Home Builders (Thomas Jon Ward, 202.266.8200)
  • National Conference of State Legislatures (Bryan Kipp Weir, 202.725.5032)
  • National Federation of Independent Business (Theodore Hadzi-Antich, 512.472.2700)
  • San Jaun County, Utah (Shawn Terry Welch, 801.799.5800)
  • Southeastern Legal Foundation (Kimberly Stewart Hermann, 770.977.2131)
  • St. Tammany Parish (Bernard Seymour Smith, 985.898.3427)
  • Washington Legal Foundation (Richard A. Samp, 202.588.0302)
  • Wyoming Stock Growers Association (Karen Budd-Falen, 307.632.5105)

In Support of Federal Respondents and Intervenor-Respondents

  • Defenders of Wildlife (Jason Craig Rylander, 202.772.3245)
  • Economists and Law Professors (Amy Joelle Wildermuth, 801.913.4608)
  • Environmental Law Professors (Hope Madeline Babcock, 202.662.9481)
  • Evangelical Environmental Network (Ian S. Weinstein, 212.636.6934)
  • Former Department of the Interior Officials (Ann Elizabeth Prezyna, 206.223.7000)
  • Gopher Frog Experts (Lisa W Jordan, 504.314.2481)
  • Institute for Policy Integrity at New York University School of Law (Richard L. Revesz, 212.998.6185)
  • Landowners (Stuart Banner, 310.206.8506)
  • Scientists (Sean Bernard Hecht, 310.794.5272)
  • Small Business Owners (Joseph Carl Cecere, 469.600.9455)