Endangered Species Law & Policy

The U.S. Fish & Wildlife Service (Service) and a group of landowners recently settled long-running litigation regarding the Service’s designation of approximately 1,500 acres of private land as critical habitat for the dusky gopher frog (Rana sevosa).  The Service designated the private land in Louisiana as critical habitat in 2012.  Weyerhaeuser Co. and local landowners sued the Service, arguing that designation of the private land where the frog could not currently survive was overreach.

The Supreme Court heard oral argument in the case on October 1, 2018.  The central issue in the case was whether an area that is not currently habitable by a species can be critical habitat for that species.  The Service argued that an area that is not currently habitable may nevertheless be critical habitat if it can be made habitable through reasonable efforts.

In its November 27, 2018 decision, the Court held that for an area to be designated critical habitat it must be habitat of the species.  Because the U.S. Court of Appeals for the Fifth Circuit Court concluded that critical habitat need not be limited to areas that are currently habitat, it did not give separate consideration to the meaning of the term habitat.  For this reason, the Court remanded to the Court of Appeals to consider the meaning of habitat in the first instance.  The Court also remanded the matter for the Court of Appeals to consider whether the Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude the land arbitrary, capricious, or an abuse of discretion.

Prior to resolution of these questions on remand, the parties agreed to a consent decree that removed the private land from the species’ critical habitat designation, while preserving the remainder of the designated habitat.

In the Supreme Court proceedings, Nossaman represented the Energy and Wildlife Action Coalition and the San Luis & Delta-Mendota Water Authority, Coalition for a Sustainable Delta, and Western Growers Association as amici curiae in support of the landowners.