Opinion: The Dusky Gopher Frog Faces a Setback at the Court

The Supreme Court issued a unanimous 8-0 opinion in Weyerhaeuser Co. v. United States Fish and Wildlife Service, also known as the dusky gopher frog case. (Chief Justice Roberts, who wrote the opinion, began it with a brief exegesis about the frog, leading to some positive Twitter commentary on his writing style.)

The Endangered Species Act (ESA) requires the Fish and Wildlife Service (FWS), when identifying a species as endangered, to also designate land as critical habitats for that species. Once a critical habitat is identified, uses of that land may be limited, but the FWS generally has the discretion to exclude some land from the critical habitat if “the benefits of such exclusion would outweigh the benefits of” designation. In this case, the FWS designated some land as a critical habitat for the dusty gopher frog, and the landowners sued, alleging both that the land should not have been considered a candidate for critical habitat at all and that the agency did not properly weigh the costs and benefits of the designation. The lower courts held that the land was properly designated and that the cost/benefit analysis was not reviewable by the courts. The Supreme Court reversed.

Regarding the first issue, whether the designated land in question could be a critical habitat at all, the Court held that the lower courts erred in not determining if the land in question was actually a “habitat,” which may also require the courts to determine what a “habitat” is, within the meaning of the statute, and it remanded for those determinations. The key statutory issue is whether a “habitat” must be somewhere that the species could live if there were modifications made, or whether a “habitat” must be currently capable of supporting the species. As relevant here, the frogs need three things in their habitats: (1) ephemeral ponds (ponds that dry up part of the year which stops predatory fish from living in them and eating the frogs’ eggs; (2) an open-canopy forest; and (3) holes and burrows the frogs could live in. The land in question has ephemeral ponds but lacks the open-canopy forests with holes and burrows. FWS concluded, however, that the forests could be restored.

Regarding the second issue, the Court held that the agency’s decision not to exclude land from its critical habitat designation is reviewable by courts, and it remanded the case for that review.

Although the overall ruling was a loss for those trying to conserve the frogs and potential habitats to keep the species alive, it’s not the end of the road for them. The case will be back in the lower court on remand where both parties will continue to battle it out. Check out CNBC, Bloomberg, and The Washington Post for more information on the decision, and this ISCOTUSnow post from when the case was argued.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


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