Mark Greenfogel of Warren Environmental Counsel

Last week the Supreme Court granted certiorari to hear Weyerhauser v. U.S. Fish and Wildlife Service, following denial of a rehearing en banc in the Fifth Circuit Court of Appeals. The two issues before the court bear upon the U.S. Department of the Interior's administration of the Endangered Species Act (ESA). First, the court will consider whether the Department of the Interior, acting through the U.S. Fish and Wildlife Service (service), exceeded its regulatory authority under the ESA by designating as critical habitat certain land that has not been inhabited by the endangered species at issue for several decades and would not provide suitable habitat for the species in its present condition. Second, the court will consider whether the service's decision not to exclude land from a critical habitat designation based on the economic impact of such designation is subject to judicial review.

The Dusky Gopher Frog

The service listed the dusky gopher frog as an endangered species in 2001. The frog had historically inhabited Alabama, Louisiana and Mississippi, but by the time of listing the service had identified only one population of approximately 100 frogs in one pond in Mississippi. The service found that the species was particularly threatened by the destruction of its habitat.

When adding a species to the endangered species list, “to the maximum extent prudent and determinable” the agency “shall … designate any habitat of such species which is then considered to be critical habitat,” 16 U.S.C. Section 1533(a)(3). The designation of critical habitat is to be made “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact.” The service identified three features needed to “sustain the essential life history functions of the frog: 'ephemeral' (i.e., seasonally existing) ponds necessary for the frog's breeding; upland forested nonbreeding habitat; and upland connectivity habitat between breeding and nonbreeding habitats.”

Between the time the service designated the frog endangered and when it commenced the critical habitat rulemaking, two additional small populations of frogs had been established near the initial pond in Mississippi. To account for the risk of extinction caused by the proximity of the occupied sites, the service proposed to also designate areas that were unoccupied by the frog. In the proposed rule, each of the unoccupied areas so designated were within four counties in Mississippi.