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Weyerhaeuser Co. v. United States Fish & Wildlife Serv.

Supreme Court of the United States

October 1, 2018, Argued; November 27, 2018, Decided

No. 17-71.


 [**275]  [*364]   Chief Justice Roberts delivered the opinion of the Court.

The Endangered Species Act directs the Secretary of the Interior, upon listing a species as endangered, to also [***6]  designate the “critical habitat” of the species. A group of landowners whose property was designated as critical habitat for an endangered frog challenged the designation. The landowners urge that their land cannot be critical habitat because it is not habitat, which they contend refers only to areas where the frog could currently survive. The court below ruled that the Act imposed no such limitation on the scope of critical habitat.

The Act also authorizes the Secretary to exclude an area that would otherwise be included as critical habitat, if the benefits of exclusion outweigh the benefits of designation. The landowners challenged the decision of the Secretary not to exclude their property, but the court below held that the Secretary’s action was not subject to judicial review.

We granted certiorari to review both rulings.

 [**276]  I

The amphibian Rana sevosa is popularly known as the “dusky gopher frog”—“dusky”  [*365]  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. Final Rule To List the Missisippi Gopher Frog Distinct Population Segment of Dusky Gopher Frog as Endangered, 66 Fed. Reg. 62993 (2001) (Final Listing). It is noted for covering its eyes with [***7]  its front legs when it feels threatened, peeking out periodically until danger passes. Markle Interests, LLC v.United States Fish and Wildlife Serv., 827 F. 3d 452, 458, n. 2 (CA5 2016). Less endearingly, it also secretes a bitter, milky substance to deter would-be diners. Brief for Intervenor-Respondents 6, n. 1.

The frog spends most of its time in burrows and stump holes located in upland 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 the small insects that the frog eats and provides a place for the frog’s eggs to attach when it breeds. The frog breeds in “ephemeral” ponds that are dry for part of the year. Such ponds are safe for tadpoles because predatory fish cannot live in them. Designation of Critical Habitat for Dusky Gopher Frog, 77 Fed. Reg. 35129-35131 (2012) (Designation).

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139 S. Ct. 361 *; 202 L. Ed. 2d 269 **; 2018 U.S. LEXIS 6932 ***; 48 ELR 20196; 86 ERC (BNA) 2999; 2018 WL 6174253


Notice: This preliminary Lexis version is unedited and subject to revision. The LEXIS pagination of this document is subject to change pending release of the final published version.

Subsequent History: On remand at, Remanded by Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 919 F.3d 963, 2019 U.S. App. LEXIS 10119 (5th Cir. La., Apr. 2, 2019)


Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 827 F.3d 452, 2016 U.S. App. LEXIS 12066 (5th Cir. La., June 30, 2016)

Disposition: Vacated and remanded.


habitat, frog, species, gopher, dusky, forest, endangered, landowners, site, timber, ponds, unreviewable, open-canopy, unoccupied, occupied, outweigh, critical-habitat, survive, pine

Environmental Law, Natural Resources & Public Lands, Endangered Species Act, Critical Habitats, Governments, Legislation, Interpretation, Administrative Law, Judicial Review, Reviewability, Preclusion, Reviewable Agency Action, Standards of Review, Abuse of Discretion