Weyerhaesur Co. v. Fish and Wildlife Service

Whether private land may be designated as “unoccupied critical habitat” under the Endangered Species Act if the designated species does not inhabit the land, and the land is not essential to its conservation.

The United States Fish and Wildlife Service (Respondent) proposed an “unoccupied critical habitat” designation for the dusky gopher frog in Mississippi and Louisiana, pursuant to the Endangered Species Act (ESA).  The designation included private land owned by Petitioners.  If implemented, Petitioners estimate a loss of $34 million caused by restrictions to land development.  Petitioners sued in federal district court for a declaratory judgment and injunctive relief. The district court granted summary judgment to Respondent. The Fifth Circuit affirmed, applying Chevron deference. The circuit determined that both scientific and factual evidence reasonably supported Respondent’s decision to designate Petitioners’ land as a “critical habitat,” which is “essential for the conservation” of the frogs.  16 U.S.C. § 1532(5)(A)(i)–(ii).  The circuit determined the economic impact findings by Respondent were not judiciable, because there are no manageable standards for judicial review.  On appeal to the U.S. Supreme Court, Petitioners argue that the land is not “essential for conservation of the species,” because the frogs do not currently inhabit the land, and cannot without modifying the land.  Alternatively, Petitioners argue that the designation violates the Commerce Clause, because the frogs do not live outside of Mississippi and there is no economic benefit. Finally, Petitioners assert the economic impact on them outweighs the designation, because the land is unsuitable to use as frog habitat.