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Weyerhaeuser Co. v. United States Fish and Wildlife Service

ELR Citation: 48 ELR 20196
Nos. 17-71, (U.S., 11/27/2018)

The U.S. Supreme Court vacated a Fifth Circuit decision upholding FWS' critical habitat designation for the dusky gopher frog. Before the appellate court, the landowners whose property was designated argued that their property did not qualify as "habitat" for the frog because the species could not survive on the property without some degree of modification. The Fifth Circuit concluded that "critical habitat" designations under the ESA were not limited to areas that qualified as habitat, and that the agency's decision not to exclude the landowner's property was committed to agency discretion by law and was therefore unreviewable. The Supreme Court, however, found the agency's decision to be reviewable and determined that the appellate court should have considered how to interpret the term "habitat" and assessed the agency's administrative findings as to the frog's ability to survive in the designated area. The Court therefore vacated the decision and remanded to the Fifth Circuit to consider these questions. Roberts, C.J., delivered the opinion of the Court, in which all other justices joined, except Kavanaugh, J., who took no part in consideration or decision of the case.