Supreme Court sends endangered frog case back to lower court News
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Supreme Court sends endangered frog case back to lower court

The US Supreme Court ruled 8-0 Tuesday that the Endangered Species Act permits the Secretary of the Interior to designate private land as “critical habitat” of endangered species, which then limits the ability to develop the designated land so long as it is a habitat for endangered species. However, courts should use the arbitrary and capricious standards of agency review when reviewing the “critical habitat” designation.

The challenge was brought by landowners whose property was designated as critical habitat for the endangered dusky gopher frog. The landowners claimed that their land was not a habitat, which they argued only applied to land where only the endangered species could live. The appeals court had ruled that the Endangered Species Act did not place any limit on the Secretary in making the designation of “critical habitat.” Similarly, the Secretary is permitted to exclude a property from the designation if “the benefits of exclusion outweigh the benefits of designation.” The landowners challenged the decision of the Secretary not to exclude their property from the designation.

The Supreme Court ruled,

Section 1533(b)(2) describes a unified process for weighing the impact of designating an area as critical habitat. The provision’s first sentence requires the Secretary to “tak[e] into consideration” economic and other impacts before designation, and the second sentence authorizes the Secretary to act on his consideration by providing that he“may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of ” designation. The word “may” certainly confers discretion on the Secretary, but it does not segregate his discretionary decision not to exclude from the mandated procedure to consider the economic and other impacts of designation when making his exclusion decisions.

The consideration of economic and other factors in the decision to use or exclude the designation should then be reviewed under the standard of “arbitrary, capricious, or an abuse of discretion.” The Supreme Court vacated and remanded the case to the Fifth Circuit.

Justice Brett Kavanaugh took no part in the decision, as oral arguments were held before he was elevated to the court.

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