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Court Punts Dusky Gopher Frog Dispute Back to the Fifth Circuit - Environmental Law News

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Environmental Law News


Posted on: Dec 5, 2018

By Donald M. Snemis, Ice Miller LLP

In his October 12 post, Colin Connor reported that the first case heard by the U.S. Supreme Court this term involved a clash of private property rights and the efforts of the U.S. Fish & Wildlife Service (USFW) to protect the Dusky Gopher Frog under the Endangered Species Act. In a November 27 opinion, the court remanded the dispute back to the Fifth Circuit for further consideration on an 8-0 vote. Justice Kavanaugh did not participate in the decision.  

USFW designated a 1,544-acre site in Louisiana as “critical habitat” for the frog even though the species had not been seen in the area since 1965. USFW concluded that the area could be restored and made suitable for the frog with minimal effort. Weyerhauser, the owner of a portion of the site, claimed that the area was not “habitat” because the frog could not currently survive in the area. Weyerhauser also contended that USFW failed to adequately weigh the benefits of the designation against the economic impact. The District Court upheld USFW’s determination of “critical habitat” over Weyerhauser’s objection and deferred to USFW’s determination on economic impact issues as committed to agency discretion and unreviewable. The Fifth Circuit affirmed.

The Supreme Court found that the Endangered Species Act contains no baseline definition of “habitat.” Further, the court disagreed with the lower court’s determination that USFW’s decision was unreviewable. Because the Fifth Circuit never interpreted the term “habitat,” and never considered whether USFW’s decision was arbitrary, capricious, or an abuse of discretion, the Supreme Court remanded the case back to the Fifth Circuit for further consideration.

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