## Facts

- The U.S. Fish and Wildlife Service (FWS) listed the dusky gopher frog as endangered and designated “critical habitat” under the Endangered Species Act (ESA).
- The frog’s current range is limited to a single area in Mississippi, but its historic range included parts of Louisiana and Alabama.
- The frog depends on (1) ephemeral breeding ponds, (2) open-canopy upland forests, and (3) accessible connected upland habitat.
- In 2012, FWS designated 6,477 acres as critical habitat, including 1,544 acres in St. Tammany Parish, Louisiana (“Unit 1”), owned/leased in part by Weyerhaeuser for timber operations.
- The frog had not been seen in Unit 1 since at least the 1960s; the land was a closed-canopy commercial timber plantation, though it contained five high-quality ephemeral ponds.
- FWS and the landowners agreed Unit 1 would require substantial changes (including converting the forest to open canopy) before it could support a sustainable frog population.
- An economic report estimated designation-related costs could reach $33.9 million over 20 years if development were constrained; FWS declined to exclude Unit 1 from the designation, finding costs not disproportionate to conservation benefits.
- The district court upheld the designation and the refusal to exclude; the Fifth Circuit affirmed and held the non-exclusion decision unreviewable under the APA.

## Issues

1. Whether land must be “habitat” before it may be designated as “critical habitat,” particularly where the area is unoccupied and currently unsuitable without major modification.
2. Whether FWS’s decision not to exclude an area from critical habitat under ESA § 4(b)(2), despite economic impacts, is subject to judicial review under the Administrative Procedure Act (APA).

## Decision

- The Supreme Court unanimously vacated the Fifth Circuit’s judgment and remanded.
- The Court held that an area may be designated as critical habitat only if it is first “habitat” for the species.
- The Court declined to provide a comprehensive definition of “habitat,” leaving that question for further proceedings on remand.
- The Court held that FWS’s decision not to exclude Unit 1 under ESA § 4(b)(2) is reviewable under the APA.

## Legal Principles

- ESA critical habitat designation authority extends only to “habitat” of the species; an area must meet that threshold before being considered for “critical habitat.”
- For unoccupied areas, the statutory “essential for the conservation of the species” inquiry does not eliminate the antecedent requirement that the area be habitat.
- There is a strong presumption favoring judicial review of administrative action; agency action is unreviewable only where statutes are drawn so that there is no meaningful standard to apply.
- ESA § 4(b)(2) provides reviewable standards by requiring consideration and weighing of relevant impacts (including economic effects) and by barring exclusions that would result in extinction; a non-exclusion determination may be challenged as arbitrary, capricious, or an abuse of discretion.

## Conclusion

The Court required that critical habitat designations be limited to areas that qualify as habitat and held that FWS’s refusal to exclude an area from designation under ESA § 4(b)(2) remains subject to APA review, vacating and remanding for reconsideration of both the habitat threshold and the agency’s cost-benefit judgment.


Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018)