Does the Endangered Species Act authorize FWS to designate as “critical habitat” for an endangered species private land that is not inhabited by the species and that cannot supply habitat without a radical change in land use?  Should the Supreme Court Grant Certiorari in Weyerhaeuser v. U.S. Fish and Wildlife Service (No. 17-71)?

In January 5th conference, the Supreme Court is expected to take up the cert petition in a case arising out of the Fifth Circuit, Weyerhaeuser. The case involves federal government regulation of private land in Louisiana for the purpose of protecting an endangered species, the dusky gopher frog. The United States Fish and Wildlife Service has asserted power under the Endangered Species Act to declare private land “critical habitat,” for the protection of this endangered species though the frog has not been seen there for 50 years and cannot live there absent a radical change in the use of the land. The Service has stated that it "will likely increasingly use” this authority to designate non-habitat areas outside the geographical area occupied by the species. Several organizations have challenged the Service’s authority and are appealing the divided decision of the Fifth Circuit Court of Appeals. Whether the Supreme Court decides to take the case or not, Weyerhaeuser will clearly be an important environmental law case.


Timothy S. Bishop, Partner, Mayer Brown

Prof. Dave Owen, Professor of Law, University of California Hastings College of the Law San Francisco

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