The Supreme Court Should Allow Landowners to Contest Critical Habitat Designations

Date: June 18, 2018

Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, which the U.S. Supreme Court will hear in the upcoming 2018-2019 term, is shaping up to be a big case. At issue is the question of whether landowners may challenge the U.S. Forest Service’s decision to impose critical habitat restrictions without considering economic impacts?

The Endangered Species Act requires the federal government to designate “critical habitat” as necessary for endangered or threatened species. But this designation triggers severe restrictions that make it difficult to build, farm, harvest timber, or do anything productive on affected lands.

In this case, FWS designated 1,500 acres as critical habitat for the dusky gopher frog. The only trouble is that there are no dusky gopher frogs present. In fact, this area could not provide suitable habitat without major changes. Nonetheless, the agency pressed forward.

Given that these restrictions were projected to cost up to $34 million in lost development opportunities, the affected landowners filed suit. But, the Fifth Circuit held that they had no right to challenge a critical habitat designation. The result is that environmental groups are now allowed to put their thumbs on the scale of justice, while affected landowners are denied their day in court to voice their objections.

We argue that Congress intended to allow landowners to challenge critical habitat designations on equal terms with environmentalists. Indeed, Congress intended a balanced approach to environmental regulation. The goal was both to promote conservation values and economic growth. Moreover, Congress amended the ESA to explicitly require FWS to consider economic impacts before finalizing a critical habitat designation.


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