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.