Supreme Court gives landowners another chance in fight over critical habitat for tiny frog

Supreme Court gives landowners another chance in fight over critical habitat for tiny frog
© Courtesy USDA

The Supreme Court on Tuesday ordered a federal appeals court to take a new look at a fight over private land in Louisiana that’s been designated a critical habitat for a tiny frog.

In an 8-0 ruling, the court said the Endangered Species Act allows the government to designate private land as “critical habitat” for endangered species only if it is a habitat for species. 

A timber company and family landowners brought the case challenging the federal government’s designation of a 1,544-acre tract of land Louisiana as a “critical habitat” for the endangered dusky gopher frog that does not now live on the land.


The land owners argued the land can’t be critical habitat for the dusky gopher frog because the frog could not survive there without a major change to its landscape.

The U.S. Fish and Wildlife Service, however, disputes the claim that the frog couldn’t actually live on the land. 

The Fifth Circuit court of Appeals originally rejected the argument that the definition of critical habitat contains a “habitability requirement” and said the agency’s designation was not subject to the court's review because it was decided under the agency’s discretion. 

The dispute was the first case the Supreme Court heard this term. Chief Justice John Roberts issued the court’s majority ruling.

He said even if an area otherwise meets the statutory definition of unoccupied critical habitat because the government finds the area essential for the conservation of the species, the Endangered Species Act does not authorize the government to designate the area as critical habitat unless it is also habitat for the species.

“Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat,” he said.

Roberts said the Fifth Circuit Court of Appeals has no occasion to interpret the term “habitat” or assess the U.S. Fish and Wildlife’s findings. He also said the court did not consider whether FWS’s assessment of the costs and benefits of the land designation was flawed in a way that would have rendered its designation arbitrary, capricious or an abuse of discretion.

Justice Brett KavanaughBrett Michael KavanaughGeorgia's heartbeat abortion bill is dangerous for women nationwide Senate votes to confirm Neomi Rao to appeals court Battle over Trump's judicial nominees enters new phase MORE, who was not yet confirmed to the bench when oral arguments were heard, did not participate in deciding the case. 

 -Updated 11:50 a.m.