The scope and definition of critical habitat under Section 4 of the Endangered Species Act has been a controversial subject. In 2012, the U.S. Fish and Wildlife Service designated 6,477 acres of land in Louisiana (including 1,600 privately-owned acres) as critical habitat for the dusky gopher frog, despite the fact that the frogs have not been seen in the state for decades. Timber company Weyerhauser Co. and private landowner Markle Interests LLC filed suit challenging that designation. Subsequent to the critical habitat designation for the dusky gopher frog, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, “the Services”) promulgated new critical habitat rules that authorized, among other things, the designation of areas where a species was not actually present as critical habitat for that species. Thus, the outcome of this case has significant implications for these 2016 rules.
On January 25, 2018, the U.S. Supreme Court granted certiorari to hear the case. The Court will be reviewing the Fifth Circuit Court of Appeals’ decision upholding the critical habitat designation. The Fifth Circuit found that the plaintiffs had not established the Services’ decision to designate critical habitat was arbitrary and capricious. The Services designation determined that the land designated in Louisiana “was essential for the conservation of the dusky gopher frog,” because it contained unique ephemeral ponds which are the only habitats that can support the rare frog. The Fifth Circuit approved the Services’ conclusion that “a designation limited to the frog’s present range would be inadequate.” The case is expected to be argued during the Supreme Court’s next term.