On Monday, January 22nd the Supreme Court granted certiorari in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, an environmental law case that centers on the question of whether the Endangered Species Act (“ESA”) allows an agency such as the U.S. Fish and Wildlife Service (“FWS”) to designate private land as “critical habitat” when it is neither a habitat nor critical.
The dusky gopher frog is an endangered species that can only survive in habitats that meet several criteria—including small ponds in a forest with tree tops spread relatively wide apart. The legal dispute arose when the FWS designated 1,544 acres in Louisiana as “critical habitat” for the gopher frog—even though the frog does not live on the land nor has the frog been seen there in 50 years. Weyerhaeuser (the private landowner) argues that allowing the FWS to expand its power to make this designation through ESA will impose drastic costs on private landowners since the designation severely limits use of the land.
The Fifth Circuit Court of Appeals ruled against the landowners, holding they had not established the FWS interpreted the ESA unreasonably when it found the land was essential for the conservation of the frog. It will be up to the Supreme Court to determine what the scope of the ESA is and when the federal government can regulate private land under the Act. The result of this litigation will have a far-reaching impact on the powers of the FWS and other similar agencies under the ESA.