By Nathan K. Riemersma, Real Estate & Land Use Attorney
The US Supreme Court released a unanimous opinion on November 27, 2018, regarding the Endangered Species Act and the amount of deference that should be given to an agency’s determination under the Act. This case, Weyerhaeuser Co. v. United States Fish and Wildlife Service et al, 2018, is important to property owners, contractors, and developers because it could have implications for the Department of Land Conservation and Development’s forthcoming rules regarding floodplains and floodways and other administrative guidelines. The Dusky Gopher Frog was classified as an endangered species in 2001. The United States Fish and Wildlife Service designated approximately 1,500 acres in Louisiana as “critical habitat” for the dusky gopher frog despite the fact that the frog had not been seen on the property in over 50 years. The property could not sustain a population of gopher frogs since much of the property was a closed canopy forest, and dusky gopher frogs require an open canopy to thrive. The Service concluded that the property could be restored to a sustainable habitat with “reasonable efforts”.
On appeal before the Court were two questions: (1) whether property can be designated as “critical habitat” under the ESA if it is not also an actual habitat for the species; and (2) whether a federal court may review an agency decision not to exclude a certain area from critical habitat because of the economic impact of such a designation.
The Court agreed with the landowners, that only the actual habitat of the endangered species is eligible for designation as critical habitat. The Court did not take the opportunity to interpret the term habitat, and whether habitat can include an area that requires modification before it can support the species. They did reaffirm that the statutory structure provides that the habitat does not necessarily need to be occupied by the species at the time, but the question revolves around whether the property would or can support the species. The Court punted the issue of interpreting “habitat” back to the Fifth Circuit to consider as an issue of first impression.
The Court specifically rejected the argument that the Service’s conclusion is unreviewable by courts because the issue was committed to agency discretion. In this case, the Fish and Wildlife Service neglected to adequately satisfy a requirement that the Secretary consider economic impacts before making a designation, and this is the type of claim that federal courts routinely assess. The Court sent this issue back to the Fifth Circuit as well, instructing the Appellate Court to consider, if necessary, whether the agency’s cost and benefit analysis was arbitrary, capricious, or an abuse of discretion.
While this opinion leaves much to be desired, there are a few takeaways for developers and property owners. The biggest revelation from this appeal is that designation interpretations by the Fish and Wildlife Service are subject to judicial challenge. While significant deference will be granted to the Service, there is a path to overturn such determinations. Second, “critical habitat” must include an existing habitat for the species, even if it does not need to be currently occupied by the endangered species.
Please contact the Real Estate and Land Use group if you have any questions navigating the Endangered Species Act or any other development issues.
Nathan Riemersma is an attorney in the Real Estate & Land Use practice group. The information in this article is not intended to provide legal advice. For a professional consultation, please contact Nathan Riemersma or Mark Shipman at Saalfeld Griggs PC. 503.399.1070. [email protected] © 2018 Saalfeld Griggs PC