On June 29, 2018 and October 8, 2018, we blogged about the dusky gopher frog, an endangered species currently confined to a small area of Mississippi. The U.S. Fish & Wildlife Service designated land in Louisiana as part of the frog’s critical habitat under the Endangered Species Act, even though the frog does not currently occupy that property and could not survive there without substantial modifications to the land.  The landowner has no obligation to make such changes and Fish & Wildlife has no power to compel it to do so.  The Fifth Circuit upheld the agency’s decision.

On November 27, 2018, the Court reversed. Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 2018 WL 6174253 (2018).  Based on the oral argument, we had assumed the Court would split on the usual ideological lines.  In fact, the opinion was 8-0.  The likely reason is that the Court did not finally resolve either of the issues raised by the landowner.

The Fifth Circuit had held that land did not have to qualify as “habitat” in order to be designated as “critical habitat.” The Supreme Court reversed that holding based on the common-sense notion that “critical habitat” must necessarily be a subset of “habitat.”  The Court did not, however, determine whether land could qualify as habitat if the endangered species did not occupy it and could not do so without substantial modification.  It left that issue for remand.

The Act allows Fish & Wildlife to exempt land from critical habitat if it concludes that the benefits of such exclusion, including economic benefits, outweigh the benefits of designating it. The landowner argued that Fish & Wildlife’s decision was arbitrary, in part because it discussed the benefits of inclusion with respect to all of the designated areas, not just the land in Louisiana; in part because it did not consider the cost of the necessary modifications.

The Fifth Circuit held that this decision was immune from judicial review under the Administrative Procedure Act. The Supreme Court also reversed that holding.  But it did not itself decide whether the decision was arbitrary and capricious, leaving that task for the Fifth Circuit on remand.

This kind of narrow ruling, avoiding any holding on the merits of a controversial issue, is something that the Chief Justice attempts to issue.