The question of whether “critical habitat” must actually be inhabitable by a threatened or endangered species has been partially answered by the U.S. Supreme Court.

The ruling pertains to the dusky gopher frog, an endangered amphibian historically found in the Southern U.S., but agriculture advocates argue such designations would affect farm and forest land elsewhere.

About 1,500 acres in Louisiana were designed as “critical habitat” for the species, even though the property would need to be significantly modified to be suitable for the frog.

While the property does contain five seasonal ponds that could serve as breeding habitat for the species, the upland forests are currently too dense for the frog.

Weyerhaeuser and other affected landowners feared the designation would prevent development of the property and challenged the U.S. Fish and Wildlife Service’s decision in court.

The “critical habitat” designation was affirmed by a federal judge and the 5th U.S. Circuit Court of Appeals upheld that ruling.

The nation’s highest court has now overturned the 5th Circuit’s opinion, ruling that only the actual habitat of an threatened or endangered species can be designated as critical.

“According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat,’” according to the unanimous decision, which was written by Chief Justice John Roberts.

However, that finding doesn’t put an end to the matter because the U.S. Fish and Wildlife Service disputes Weyerhaeuser’s claim that the frog can’t currently survive on the 1,500 acres.

Instead of resolving this question, the Supreme Court has instead sent the case back to the 5th Circuit to consider what qualifies as habitat.

“That is no baseline definition of habitat—it identifies only certain areas that are indispensable to the conservation of the endangered species,” the ruling said. “The definition allows the Secretary to identify the subset of habitat that is critical, but leaves the larger category of habitat undefined.”

Some other of Weyerhaeuser’s arguments regarding the critical habitat designation’s economic impacts have also been remanded to the 5th Circuit.

Specifically, the company claimed the federal government should have considered the specific impacts of the designation on those 1,500 acres, rather than the entirety of the frog’s critical habitat, which included sites in Mississippi it currently inhabits.

Also, the company argued the U.S. Fish and Wildlife should have considered more than the $34 million cost of lost development rights, such as the lost tax revenues for the local government and the cost of modifying the habitat.

I've been working at Capital Press since 2006 and I primarily cover legislative, regulatory and legal issues.

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