Supreme Court: Property Rights Reign over Dusky Gopher Frog
The U.S. Supreme Court released its decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service (“USFWS”) that resulted in a significant victory for private property rights. Using common sense, the Supreme Court interpreted the Endangered Species Act (“ESA”) to allow critical habitat designations only in areas that the USFWS determines are actually habitat for a given species. Importantly, the case also reclaims judicial authority over agency decision-making under the Administrative Procedure Act (“APA”).
The case involved the USFWS’ designation of critical habitat for the dusky gopher frog. The frog requires certain features in the terrain and vegetation of an area to thrive. At the heart of this case is the USFWS’ 2012 decision to designate 1,500 acres of private land in Louisiana owned by Markle Interests, LLC as critical habitat for the endangered dusky gopher frog. Markle’s land is currently used by the Weyerhaeuser Company for its timber operations. The USFWS estimates that there are as few as 135 dusky gopher frogs left, but all of the remaining frogs are found 70 miles away from Markle’s property in Mississippi. No frog has been spotted in Louisiana in 50 years. Weyerhaeuser argues that the USFWS’ designation of critical habitat will result in $34 million of lost property value.
Weyerhaeuser had filed three previous lawsuits against the USFWS, and until now, the courts found in favor of the USFWS in each suit. The USFWS designated area where the forest had changed in ways that made it unsuitable for dusky gopher frogs. However, the Supreme Court reasoned that the ESA says USFWS may exclude or designate an area as critical habitat, and using the word “may” does not insulate a decision from judicial review.