Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No. 17–71.

• Court: United States Supreme Court
• Writing for the Court: Chief Justice ROBERTS delivered the opinion of the Court.
• Citation: 139 S.Ct. 361,202 L.Ed.2d 269
• Parties: WEYERHAEUSER COMPANY, Petitioner v. UNITED STATES FISH AND WILDLIFE SERVICE, et al.
• Docket Number: No. 17–71.
• Decision Date: 27 November 2018

139 S.Ct. 361
202 L.Ed.2d 269

WEYERHAEUSER COMPANY, Petitioner
v.
UNITED STATES FISH AND WILDLIFE SERVICE, et al.

No. 17–71.

Supreme Court of the United States

Argued Oct. 1, 2018.
Decided Nov. 27, 2018.

Timothy S. Bishop, Chicago, IL, for Petitioner.

Edwin S. Kneedler, Washington, D.C., for Respondents.

Damien M. Schiff, Anthony L. François, Oliver J. Dunford, Pacific Legal Foundation, Sacramento, CA, Jonathan Wood, Pacific Legal Foundation, Arlington VA, Mark Miller, Christina M. Martin, Pacific Legal Foundation, Palm Beach Gardens, FL, Edward B. Poitevent, II, Stone Pigman Walther, Wittman LLC, New Orleans, LA, for Respondents Markle Interests, LLC; P&F Lumber Company 2000, LLC; and PF Monroe Properties, LLC.

Richard C. Stanley, Stanley, Renter, Ross, Thornton & Alford, LLC, New Orleans, LA, James R. Johnston, Zachary R. Hiatt, Weyerhaeuser Company, Seattle, WA, Timothy S. Bishop, Chad M. Clamage, Jed W. Glickstein, Jill M. Fortney, Mayer Brown LLP, Chicago, IL, for Petitioner.

John T. Buse, Center for Biological Diversity, Oakland, CA, Collette L. Adkins, Center for Biological Diversity, Circle Pines, MN, David T. Goldberg, Pamela S. Karlan, Stanford Law School, Supreme Court, Litigation Clinic, Stanford, CA, for Intervenor–Respondents Center for Biological Diversity and Gulf Restoration Network.

Noel J. Francisco, Solicitor General, Jeffrey H. Wood, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Jeffrey E. Sandberg, Assistant to the Solicitor General, Andrew C. Mergen, Mary Hollingsworth, J. David Gunter II, Attorneys, Department of Justice, Washington, D.C., for Federal Respondents.

Chief Justice ROBERTS delivered the opinion of the Court.

The Endangered Species Act directs the Secretary of the Interior, upon listing a species as endangered, to also designate the "critical habitat" of the species. A group of landowners whose property was designated as critical habitat for an endangered frog challenged the designation. The landowners urge that their land cannot be critical habitat because it is not habitat, which they contend refers only to areas where the frog could currently survive. The court below ruled that the Act imposed no such limitation on the scope of critical habitat.

The Act also authorizes the Secretary to exclude an area that would otherwise be included as critical habitat, if the benefits of exclusion outweigh the benefits of designation. The landowners challenged the decision of the Secretary not to exclude their property, but the court below held that the Secretary's action was not subject to judicial review.

We granted certiorari to review both rulings.

I

A

The amphibian Rana sevosa is popularly known as the "dusky gopher frog"—

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"dusky" because of its dark coloring and "gopher" because it lives underground. The dusky gopher frog is about three inches long, with a large head, plump body, and short legs. Warts dot its back, and dark spots cover its entire body. Final Rule To List the Mississippi Gopher Frog Distinct Population Segment of Dusky Gopher Frog as Endangered, 66 Fed.Reg. 62993 (2001) (Final Listing). It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Markle Interests, LLC v. United States Fish and Wildlife Serv., 827 F.3d 452, 458, n. 2 (C.A.5 2016). Less endearingly, it also secretes a bitter, milky substance to deter would-be diners. Brief for Intervenor–Respondents 6, n. 1.

The frog spends most of its time in burrows and stump holes located in upland longleaf pine forests. In such forests, frequent fires help maintain an open canopy, which in turn allows vegetation to grow on the forest floor. The vegetation supports the small insects that the frog eats and provides a place for the frog's eggs to attach when it breeds. The frog breeds in "ephemeral" ponds that are dry for part of the year. Such ponds are safe for tadpoles because predatory fish cannot live in them. Designation of Critical Habitat for Dusky Gopher Frog, 77 Fed.Reg. 35129–35131 (2012) (Designation).

The dusky gopher frog once lived throughout coastal Alabama, Louisiana, and Mississippi, in the longleaf pine forests that used to cover the southeast. But more than 98% of those forests have been removed to make way for urban development, agriculture, and timber plantations. The timber plantations consist of fast-growing loblolly pines planted as close together as possible, resulting in a closed-canopy forest inhospitable to the frog. The near eradication of the frog's habitat sent the species into severe decline. By 2001, the known wild population of the dusky gopher frog had dwindled to a group of 100 at a single pond in southern Mississippi. That year, the Fish and Wildlife Service, which administers the Endangered Species Act of 1973 on behalf of the Secretary of the Interior, listed the dusky gopher frog as an endangered species. Final Listing 62993–62995; see 87 Stat. 886, 16 U.S.C. § 1533(a)(1).

B

When the Secretary lists a species as endangered, he must also designate the critical habitat of that species. § 1533(a)(3)(A)(i). The ESA defines "critical habitat" as:

"(i) the specific areas within the geographical area occupied by the species ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and

"(ii) specific 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." § 1532(5)(A).

Before the Secretary may designate an area as critical habitat, the ESA requires him to "tak[e] into consideration the economic impact" and other relevant impacts of the designation. § 1533(b)(2). The statute goes on to authorize him to "exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of [designation]," unless exclusion would result in extinction of the species. Ibid.

A critical-habitat designation does not directly limit the rights of private landowners. It instead places conditions on

139 S.Ct. 366

the Federal Government's authority to effect any physical changes to the designated area, whether through activities of its own or by facilitating private development. Section 7 of the ESA requires all federal agencies to consult with the Secretary to "[e]nsure that any action authorized, funded, or carried out by such agency" is not likely to adversely affect a listed species' critical habitat. 16 U.S.C. § 1536(a)(2). If the Secretary determines that an agency action, such as issuing a permit, would harm critical habitat, then the agency must terminate the action, implement an alternative proposed by the Secretary, or seek an exemption from the Cabinet-level Endangered Species Committee. See National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 652, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) ; 50 C.F.R. 402.15 (2017).

Due to resource constraints, the Service did not designate the frog's critical habitat in 2001, when it listed the frog as endangered. Designation, at 35118–35119. In the following years, the Service discovered two additional naturally occurring populations and established another population through translocation. The first population nonetheless remains the only stable one and by far the largest. Dept. of Interior, U.S. Fish and Wildlife Serv., Dusky Gopher Frog (Rana sevosa ) Recovery Plan iv, 6–7 (2015).

In 2010, in response to litigation by the Center for Biological Diversity, the Service published a proposed critical-habitat designation. Designation, at 35119. The Service proposed to designate as occupied critical habitat all four areas with existing dusky gopher frog populations. The Service found that each of those areas possessed the three features that the Service considered "essential to the conservation" of the frog and that required special protection: ephemeral ponds; upland open-canopy forest containing the holes and burrows in which the frog could live; and open-canopy forest connecting the two. But the Service also determined that designating only those four sites would not adequately ensure the frog's conservation. Because the existing dusky gopher frog populations were all located in two adjacent counties on the Gulf Coast of Mississippi, local events such as extreme weather or an outbreak of an infectious disease could jeopardize the entire species. Designation of Critical Habitat for Mississippi Gopher Frog, 75 Fed.Reg. 31394 (2010) (proposed 50 C.F.R. Part 17).

To protect against that risk, the Service proposed to designate as unoccupied critical habitat a 1,544–acre site in St. Tammany Parish, Louisiana. The site, dubbed "Unit 1" by the Service, had been home to the last known population of dusky gopher frogs outside of Mississippi. The frog had not been seen in Unit 1 since 1965, and a closed-canopy timber plantation occupied much of the site. But the Service found that the site retained five ephemeral ponds "of remarkable quality," and determined that an open-canopy forest could be restored on the surrounding uplands "with reasonable effort." Although the uplands in Unit 1 lacked the open-canopy...