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SCOTUS Orders New Review of Critical Habitat for Rare Frog

In Weyerhaeuser Company v. United States Fish and Wildlife Service, the government designated 1,500 acres of forest in Louisiana as a critical habitat for dusky gopher frog. But the Supreme Court ruled the government might have gone too far and ordered the lower court to take a closer look at the "critical habitat" in this case. In a way, the U.S. Fish and Wildlife Service tried to leapfrog the rules.

Critical Habitat

The Weyerhaeuser Company had sued the wildlife agency for designating its private land as a protected habitat. The company harvests timber on the Louisiana land, but the agency said it was a critical habitat for the frog -- even though it doesn't live there.

The U.S. Fifth Circuit Court of Appeals agreed with the government action, but the Supreme Court did not. In a unanimous decision, the justices vacated and remanded.

"According to the ordinary understanding of how adjectives work, 'critical habitat' must also be 'habitat,'" Chief Justice John Roberts wrote. "Only the 'habitat' of the endangered species is eligible for designation as critical habitat."

Roberts also said there is an issue about whether the government did a rigorous cost-benefit analysis when designating the habitat. At oral arguments, he said there has to be some limit on what the government can do.

Endangered Species

The dusky gopher frog has been listed as an endangered species since 2001, when its population had dropped to about 100 adult frogs. They were living in one pond in Mississippi at the time.

The government then designated four Mississippi counties as potential habitats, and added the Louisiana property later. The frogs had lived there until 1965.

Meanwhile, their case will go back to the Fifth Circuit for further consideration. Weyerhaeuser said a critical habitat designation could cost it up to $34 million in lost property value.

Editor's note, Dec. 3, 2018: This article has updated to clarify the Court's holding.

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