On June 29, 2018, we blogged about the dusky gopher frog, an obscure endangered species that lives only in a small area of Mississippi. The U.S. Fish & Wildlife Service nonetheless designated several hundred acres in Louisiana as critical habitat, even though the frog has not lived there for over 50 years and could not survive without substantial changes to the property.  The government has no legal authority to direct the owner of private land to make such changes.  A badly divided Fifth Circuit upheld the designation.

On Monday, October 1, 2018, the Supreme Court heard argument in the landowner’s appeal. Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, No. 17-71.  Based on the judges’ questions, the Court appears to be dividing along familiar lines, assuming the silent Justice Thomas agrees with the conservatives.

One never knows how a case may turn out until the opinion is published, and there are several issues both legal and factual on which the justices have not really staked out a position.  The first is whether land could ever be “critical habitat” under the Endangered Species Act if the endangered species does not currently inhabit it and could not survive without changes to the land.  The liberal justices apparently think that the answer is yes, if the cost of the changes is reasonable.  The alternative, they suggested, would be to allow the species to expire.

Weyerhaeuser disagreed on both the legal and the factual aspects of that hypothetical, arguing that the plain meaning of “habitat” is where a plant grows or an animal lives. Weyerhaeuser also argued that the cost would be unreasonable and that the government could always buy the land and make the necessary improvements itself.

The more conservative justices wanted to know where in the statute one could find the reasonableness concept.  They also wanted to know who was supposed to pay for the necessary changes and why the government could not take other steps to preserve the species.

The parties also clashed on a technical point of administrative law.  The Secretary of the Interior has discretionary authority to exclude land from the critical habitat if s/he determines that the benefits of exclusion outweigh the benefits of inclusion.  The Fifth Circuit held that such a decision was not subject to judicial review.  Weyerhaeuser argued that the Court had previously held that the Administrative Procedure Act does authorize such review and gave an example of how irrational it thought the failure to exclude its lands from critical habitat really was.  The Deputy Solicitor General did not reach the issue.

The most interesting part of the argument is what was not addressed: Chevron deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), held that an agency’s formal interpretation of an ambiguous statute is entitled to deference and can be overturned only if the interpretation is unreasonable.  It has been a major factor in the rise of the administrative branch of the executive and several Supreme Court justices have called for its reconsideration.  But no one mentioned the doctrine.

The Court will likely issue an opinion early next year.