In 2012, the U.S. Fish and Wildlife Service (Service or agency) designated 1,544 acres of land in Louisiana and additional land in Mississippi as “critical habitat” for the endangered dusky gopher frog. The agency made this designation pursuant to authority delegated by Congress in the Endangered Species Act. The Louisiana designation includes land owned by three family businesses that have held the property in their family for over a century and Weyerhaeuser Company, which leases some land from those landowners and also owns a small portion of it (collectively, the Landowners).
The government designated the Louisiana property critical habitat for the “shy frog” even though the frog has not been seen anywhere near the land—let alone in Louisiana at all—in more than 50 years; this led the Service to designate it unoccupied critical habitat. Because the Landowners did not believe the Endangered Species Act and the Constitution allowed the agency to designate their Louisiana land critical habitat for the frog, they challenged the designation as exceeding the agency’s statutory and constitutional authority. That challenge has now hopped its way to the Supreme Court, which will hear argument in the case on October 1, 2018—the first day of the new Court term. The case will have implications for both environmental law and administrative law practice throughout the country.

Featuring:
Mark Miller, Senior Attorney, Pacific Legal Foundation

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