Supreme Court grants a shy frog the chance to shape critical
habitat designations
30 January 2018
The Supreme Court (the Court) will soon address two recurring issues concerning administration
of the Endangered Species Act, and more broadly, the deference given to agency action in the
discretionary exercise of statutory authority. Last week, the Supreme Court granted certiorari for
a Fifth Circuit case that pits property owners—including one of the nation’s largest timber
companies—against a small, elusive species of frog nicknamed the “shy frog.” Weyerhaeuser Co.
v. U.S. Fish & Wildlife Serv., No. 17-71 (U.S. 22 January 2018). Though the case specifically
addresses the Fish and Wildlife Service’s decision to include 1,544 acres of St. Tammary Parish,
Louisiana, in the dusky gopher frog’s “critical habitat,” the legal questions raised could have
broad implications for interpretations of the Endangered Species Act and administrative law
generally. The petition for certiorari asks the Court to address:
1. whether the Endangered Species Act prohibits designation of private land as unoccupied
critical habitat that is neither habitat nor essential to species conservation; and
2. whether an agency decision not to exclude an area from critical habitat because of the
economic impact of designation is subject to judicial review.
For each species listed as threatened or endangered under the Endangered Species Act, the Fish
and Wildlife Service (the Service) must “designate any habitat of such species which is then
considered to be critical habitat.” 16 U.S.C. § 1533(a)(3)(A)(i)-(ii). The statute contemplates two
types of critical habitat: (1) areas within the geographical area occupied by the species, which
contain the physical or biological features essential to the conservation of the species; and (2)
areas outside the geographical area occupied by the species, “upon a determination by the
Secretary that such areas are essential for the conservation of the species.” 16 U.S.C. §
1532(5)(A)(i)–(ii) (emphases added). Once land is designated as critical habitat, “federal agencies
may not authorize, fund, or carry out actions that are likely to ‘result in the destruction or adverse
modification’ of critical habitat.” Otay Mesa Prop., L.P. v. U.S. Dep’t of Interior, 646 F.3d 914, 915
(D.C. Cir. 2011) (quoting 16 U.S.C. § 1536(a)(2)).
The Service listed the dusky gopher frog as endangered in 2001 and proposed in 2010 to
designate 1,957 acres in Mississippi as critical habitat. After public comment and peer review, the
Service’s final designation ultimately expanded the critical habitat designation to include 4,933
acres in Mississippi and 1,544 acres in St. Tammary Parish, Louisiana. See Endangered and
Threatened Wildlife and Plants; Designation of Critical Habitat for Dusky Gopher Frog
(Previously Mississippi Gopher Frog), 77 Fed. Reg. 35,118 (12 June 2012). The dusky gopher frog
does not currently occupy the land in St. Tammary Parish and has not been seen in Louisiana
