What the 9th Justice (Unconfirmed as yet) Is Missing: Argument preview: Justices to Consider Critical-habitat Designation for Endangered Frog

Citing scientific studies and the consensus of six peer reviewers, the service found that Unit 1 was “essential” to the conservation of the dusky gopher frog. The service explained that Unit 1 contained five “intact” ephemeral ponds of “remarkable quality.” It acknowledged that timber operations on the property had closed the forest’s canopy, and that the vegetation to which the frog’s eggs attach and which the frog eats thrives in an open-canopy forest. The service found, however, that with reasonable efforts at restoration, the forest surrounding the ponds could support a transplanted population of the frogs. The service concluded that the one area that still housed a population of dusky gopher frogs was vulnerable to local disruptions such as disease and drought, and that it was necessary to establish additional populations “beyond the single site known to be occupied at listing” to protect the frog from extinction and make possible its recovery.

The service analyzed the costs and benefits of designating Unit 1 as critical habitat. Because the restrictions on critical habitat take hold – and impose regulatory costs – only when there is a separate federal action such as wetlands permitting, the service faced the question whether such federal action was likely to occur. The agency developed three hypothetical scenarios: The owners of Unit 1 take no action to trigger the federal government’s permitting authority; the owners request a permit and agree to protect 60 percent of Unit 1 as frog habitat; and the owners request a permit and the government prohibits development on all of Unit 1. Cost estimates ranged from zero in the first scenario to $34 million in the third. The service did not monetize the direct benefits of habitat designation, stating that these benefits were “best expressed in biological terms.”

Weyerhaeuser and the other owners of Unit 1 challenged the designation in federal court, and the Center for Biological Diversity and the Gulf Restoration Network were allowed to intervene on the side of the Fish and Wildlife Service. The district court ruled for the service. A divided panel of the U.S. Court of Appeals for the 5th Circuit affirmed. The court held that the owners’ allegation that their property had lost value due to the critical-habitat designation met the “injury-in-fact” requirement for access to federal court. On the merits, the court deferred to the service’s interpretation of the term “essential” in the Endangered Species Act and found that the service had not acted arbitrarily when it deemed Unit 1 essential to the conservation of the dusky gopher frog. The court also held that the service’s decision not to exclude Unit 1 from the critical-habitat designation based on the balance between costs and benefits was not subject to judicial review.

The justices will consider two issues: whether the service’s designation violated the ESA and whether its decision not to exclude Unit 1 was reviewable. As to the first question, Weyerhaeuser argues that Unit 1 is simply not “habitat” for the dusky gopher frog and thus cannot be “critical habitat.” According to Weyerhaeuser, “habitat” must be currently habitable, and Unit 1 fails this test because dusky gopher frogs do not live there now and “would not survive” if they were transplanted to the property in its present state. Weyerhaeuser and the other landowners say they will not allow the service to translocate frogs to Unit 1 or to undertake any restoration activities there – meaning that Unit 1 will not become habitable for dusky gopher frogs any time soon. Weyerhaeuser urges the Supreme Court to adopt a narrow interpretation of the statute to avoid a constitutional question about whether the commerce clause grants Congress the power to regulate an intrastate, “non-commercial frog.”

Stressing the presumption of reviewability of agency decisions, Weyerhaeuser argues that the service’s decision not to exclude Unit 1 from the designation of critical habitat is subject to judicial review. It urges the court to overturn the service’s decision as an abuse of discretion because the costs of up to $34 million outweigh the benefits of conserving the dusky gopher frog.

The service argues that the plain meaning of the critical-habitat provisions supports its designation decision, noting as a backup that it should receive deference to its interpretation under Chevron even if the Supreme Court finds the statute ambiguous. The service argues that its decision on critical habitat “subsumed” a determination that Unit 1 is “habitat” and notes that Weyerhaeuser did not challenge its factual findings in the lower courts. The service states that “habitat remains ‘habitat’ even if it would require human intervention (such as restoration) to become optimal for a species’ long-term conservation.” Were it otherwise, the service asserts, “the Act’s contemplation that habitat may need restoration for recovery of the species would have little meaning.” Throughout its brief, the service defends its legal judgments by reference to its detailed findings in the administrative record. The service argues that the constitutional avoidance canon is inapplicable because the constitutional concerns Weyerhaeuser raises would not be avoided by its preferred interpretation.

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What the 9th Justice (Unconfirmed as yet) Is Missing: Argument preview: Justices to Consider Critical-habitat Designation for Endangered Frog

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