Opinion Analysis: Frogs and Humans Live to Fight Another Day

by Lisa Heinzerling

November 30, 2018

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

In a mixed-bag ruling, a unanimous Supreme Court returned Weyerhaeuser Co. v. U.S. Fish and Wildlife Service to the U.S. Court of Appeals for the 5th Circuit to decide several questions not answered on the first go-round. Chief Justice John Roberts’ opinion for the court appears calculated to decide just enough to justify shipping the case back to the lower court.

The case involves the Fish and Wildlife Service’s designation, under the Endangered Species Act, of property in Louisiana as "critical habitat" for the dusky gopher frog. The frog has not lived on this property for many years, but the service concluded that the property was essential to the conservation of the frog – and thus appropriately deemed critical habitat – because it contains high-quality ephemeral ponds of the kind the frog uses for breeding. The service also found that, with reasonable efforts at restoration of the property, the property could support a transplanted population of frogs. The service declined to exclude the property in Louisiana from its designation of critical habitat, finding that the economic costs of the designation did not outweigh the conservation benefits.

The first question concerned whether property can be "critical habitat" if it is not "habitat." The landowners argued that the word "habitat" itself limits the service’s designations, alone and apart from the word "critical." The Supreme Court accepted this argument, explaining: "Adjectives modify nouns – they pick out a subset of a category that possess a certain quality. It follows that ‘critical habitat’ is the subset of ‘habitat’ that is ‘critical’ to the conservation of an endangered species." The court emphasized the provision of the act requiring the Fish and Wildlife Service to "designate any habitat of such species which is then considered to be critical habitat."

The Supreme Court did not answer the question that had most engaged the justices at oral argument: whether "habitat" includes areas that require some modification before they can support a sustainable population of the relevant species. The court noted the arguments on both sides of this question, lobbed in an intriguing parenthetical (("Habitat can, of course, include areas where the species does not currently live, given that the statute defines critical habitat to include unoccupied areas.)"), and sent the case back to the 5th Circuit with instructions to sort out the meaning of "habitat" and to "assess the Service’s administrative findings" on whether the frog could survive on the designated property.

Given that the service is charged with implementing the Endangered Species Act and that the first time the 5th Circuit heard this case it deferred to the service’s interpretation of the act under Chevron v. Natural Resources Defense Council, it will not be surprising if the 5th Circuit listens carefully to the views of the service in determining the meaning of "habitat" under the act. (The Supreme Court did not cite Chevron in its opinion.)

The second question concerned the reviewability of the service’s decision that the economic impact of its designation of critical habitat for the frog was not disproportionate to the conservation benefits of the designation. The Supreme Court rejected the 5th Circuit’s ruling that this decision was unreviewable under Section 701(a)(2) of the Administrative Procedure Act because it was "committed to agency discretion by law." The court noted the narrowness of this legal category and the strength of the presumption favoring judicial review of administrative action. The court found that the service’s decision involved "the sort of routine dispute that federal courts regularly review," and that the landowner’s claim was "the familiar one in administrative law that the agency did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion." The court instructed the 5th Circuit to consider, "if necessary," whether the service’s assessment of the costs and benefits of designation was "flawed" in a way that made its decision not to exclude the Louisiana property from designation arbitrary, capricious or an abuse of discretion.

It’s early in the term, without much to go on in trying to predict the tenor of the newly reconfigured court. This case provides few hints. Just for fun, though, consider this: Roberts opens his opinion with a sweet, almost playful, description of the dusky gopher frog – a far cry from his dismissal of a "hapless toad" in his first opinion for the U.S. Court of Appeals for the District of Columbia Circuit, in 2005. Maybe he likes frogs better than toads? Maybe he has softened? Hard to say.

Justice Brett Kavanaugh, who had not yet been confirmed when the justices heard oral argument on October 1, did not participate in the case.

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Lisa Heinzerling is a Professor of Law at Georgetown University. 

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