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Posted on Monday, December 17, 2018

Weyerhaeuser Company v. The Dusky Gopher Frog & United States Fish and Wildlife Service

Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, ___ U.S. ___, No. 17-71 (27 November 2018)

This case concerns an unfortunate little creature that is hovering on the verge of extinction: the dusky gopher frog. First, a bit of zoology. The amphibian Rana sevosa is commonly known as the “dusky gopher frog – “dusky” because of its dark coloring and “gopher” because it lives underground. The dusky gopher frog is about three inches long, with a large head, plump body, and short legs. Warts dot its back, and dark spots cover its entire body. It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Less endearingly, it also secretes a bitter, milky substance to deter would be diners.
For many years, the frog lived in longleaf pine forests. In such forests, frequent fires help maintain an open canopy which in turn allows vegetation to grow on the forest floor. The vegetation supports small insects that the frog eats. The frog breeds in “ephemeral” ponds that are dry for part of the year. Such ponds are safe for tadpoles because fish cannot live in them.
The dusky gopher frog once lived throughout coastal Alabama, Louisiana and Mississippi in longleaf pine forests, but more than 98% of the forests have been removed to make way for development, agriculture and timber plantations. The timber plantations consist of fast-growing loblolly pines planted as close together as possible, resulting in a closed-canopy forest that is an inhospitable environment for the frog. The near eradication of the frog’s habitat sent the species into severe decline, and the Secretary of the Interior, acting through the Fish and Wildlife Service (“the Service”), which administers the Endangered Species Act (“ESA”), listed the dusky gopher frog as an endangered species. 16 U.S.C. §1533(a)(1).
If the Secretary lists a species as endangered, then the Secretary must also designate the critical habitat of the species. The ESA defines critical habitat as a specific area, within the general area occupied by the species, which has physical and biological features (i) that are essential to the conservation of the species, and (ii) which may require special management protection. The Secretary must take into consideration the economic and other impacts of the designation. Even if a specific area meets the criteria for designation as critical habitat, the ESA authorizes the Secretary to exclude the area from critical habitat if the Secretary determines that the benefits of exclusion outweigh the benefits of designation as critical habitat.
The Secretary designated four sites as critical habitat for the dusky gopher frog. All four sites are on the Gulf Coast of Mississippi. However, the Secretary determined that designating only those four sites would not assure the frog’s conservation. To protect against the risk of extinction, the Secretary proposed designating a nearby area in Louisiana as critical habitat. The area, called Unit 1, has not been a habitat for the frog since 1965. Unit 1 does not have an open-canopy forest of the type necessary for designation. A closed-canopy timber plantation covers most of the site. Unit 1 has ephemeral ponds, and the Secretary determined that the closed-canopy could be changed to open-canopy with reasonable effort, thereby making the site a suitable habitat for the dusky gopher frog.
The Service commissioned a report on the probable economic impact of designating Unit 1 as critical habitat, and based on the report the Service concluded that the conservation benefits outweighed the potential economic costs and declined to exclude Unit 1 from the frog’s critical habitat.
Weyerhaeuser sued in federal court to vacate the designation. Weyerhaeuser asserted that the frog could survive in Unit 1 only if the closed tree-canopy encircling the ponds was replaced with an open-canopy longleaf pine forest. Therefore, Unit 1, which is uninhabitable for the frog, could not be critical habitat. Weyerhaeuser also challenged the Service’s decision not to exclude Unit 1 from the frog’s critical habitat, arguing that the Service failed to properly weigh the benefits of designation against the economic impact.
The District Court rejected the challenge and the 5th Circuit affirmed. The 5th Circuit held that the statute’s definition of critical habitat does not have a “habitability requirement.” The 5th Circuit also held that the decision not to exclude Unit 1 was committed to agency discretion by law and unreviewable.
The Supreme Court began with an elementary grammatical analysis of the statutory phrase “critical habitat.” According to the ordinary understanding of how adjectives work, “critical habitat” must also be “habitat.” Adjectives modify nouns – they pick out a subset of a category that possesses a certain quality. It follows that “critical habitat” is the subset of “habitat” that is “critical” to the conservation of the endangered species. Of course, statutory language cannot be construed in a vacuum, and a court must consider “critical habitat” in its statutory context. The statute does not authorize the Secretary to designate an area as critical habitat unless the area is also habitat for the species. In other words, an area can be critical habitat only if it is a habitat.
The statute, however, does not define the term “habitat.” The statutory definition of critical habitat tells us what makes a habitat “critical,” not what makes it a “habitat.” There is no baseline definition of habitat. The statute only defines the areas that are indispensable to the conservation of an endangered species. It allows the Secretary to identify the subset of habitat that is critical, but leaves the larger category of habitat undefined.
Weyerhaeuser and the Service dispute the meaning of habitat, whether the dusky gopher frog could survive in Unit 1, and whether Unit 1 is the frog’s habitat. The 5th Circuit did not answer these questions, and the Supreme Court remanded the case to the 5th Circuit to consider these questions in the first instance.
As mentioned, the Secretary must consider economic impact. Even if the area meets the criteria for designation as critical habitat, if the Secretary determines that the economic benefit outweighs the benefit of designation as critical habitat, then the Secretary can exclude the area from designation. 16 U.S.C. §1533(b)(2). Weyerhaeuser alleged that the Service incorrectly assessed the costs and benefits of designating Unit 1 as critical habitat. The 5th Circuit did not consider Weyerhaeuser’s claim because it held that the Service’s decision to exclude an area from critical habitat is unreviewable.
The Administrative Procedure Act creates a presumption of judicial review for one suffering legal wrong from agency action. Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967); Mach Mining, LLC v. EEOC, 575 U.S. ___ (2015). The presumption may be rebutted only if the relevant statute precludes review, 5 U.S.C. §701(a)(1), or if the action is committed to agency discretion by law. §701(a)(2).
An action is rarely committed to the unreviewable discretion of the agency. A statute commits agency action to unreviewable agency discretion only if the relevant statute has no standard against which a court could judge the agency’s exercise of discretion. Lincoln v. Vigil, 508 U.S. 182, 191 (1993).
The ESA requires the Secretary to consider economic impact and relative benefits before deciding whether to exclude an area from critical habitat or to proceed with designation. The statute is, therefore, not “drawn so that a court would have no meaningful standard against which to judge the [Secretary’s] exercise of [his] discretion” not to exclude. Lincoln, 508 U.S at 191. The Secretary’s decision is not unreviewable. The 5th Circuit did not 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 Unit 1 arbitrary, capricious or an abuse of discretion. Accordingly, the Supreme Court remanded to the 5th Circuit to consider that question.
This is a unanimous decision by eight justices. Justice Kavanaugh took no part in the decision.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.