On February 17, 2017, and August 21, 2017, we blogged about this case. The U.S. Fish & Wildlife Service has designated certain land in Louisiana as critical habitat for the dusky frog, even though the frog does not currently inhabit that land and could not survive if it attempted to inhabit it. By an 8-6 vote, the Fifth Circuit upheld the government’s position.
On January 22, 2018, the Supreme Court granted Weyerhaeuser’s cert. petition. The petition did not raise any constitutional questions about the scope of the Endangered Species Act, so it is unlikely that the Court will rule on those issues. It could very well read the statute narrowly to avoid raising constitutional considerations.