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The United States Supreme Court recently held that land may
only be designated a “critical habitat” for an endangered species if that same
land is first a “habitat” for an endangered species. In Weyerhaeuser Co. v. U.S. Fish and
Wildlife Service, 139 S. Ct. 361 (2018), the Supreme Court evaluated the
United States Fish and Wildlife Service’s (“the Service”) designation of
certain land in Louisiana as a critical habitat for the dusky gopher frog,
which is classified as an endangered species.
The dusky gopher frog once lived throughout open-canopied
forests along the coastlines of Alabama, Mississippi, and Louisiana. However, over 98% of those open-canopied forests
have been destroyed. As of 2001, only one
hundred known dusky gopher frogs existed—all in the same pond in
Mississippi. In response, the Service
designated dusky gopher frogs as endangered species.
A few years later, the Service, pursuant to federal
requirements to protect listed endangered species, defined the dusky gopher
frogs’ critical habitat. In addition to
designating lands currently occupied by dusky gopher frogs as critical
habitats, the Service also designated certain Louisiana land consisting of
closed-canopy forests as critical habitat.
The land owners argued this designation would have an
adverse impact on their economic interests.
The owners argued dusky gopher frogs do not and could not survive there
due to the now closed-canopy nature of the Louisiana forests designated as critical
habitat. The Service argued the
designation of unoccupied lands was necessary to ensure survival of the dusky
gopher frog. The Supreme Court held that
an area of land can only be designated as critical habitat for an endangered
species if the land is an existing habitat for the endangered species.