NFIB Commends Supreme Court’s Unanimous Decision in Endangered Species Act Case

Date: November 27, 2018

Decision allows landowners to contest wrongful critical habitat designation

Washington, D.C. (Nov. 27, 2018) – NFIB commends the United States Supreme Court’s unanimous decision in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, which reverses the decision of the Fifth Circuit Federal Court of Appeals. The Supreme Court sided with NFIB, holding that landowners may bring suit in a challenge to critical habitat designations that impose serious restrictions on private property.

“The Supreme Court’s unanimous decision in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service is an important win for small business,” said Karen Harned, Executive Director of the NFIB Small Business Legal Center. “Today’s decision affirmed that the U.S. Fish & Wildlife Service is required to consider the economic impact for small business when designating critical habitat under the Endangered Species Act. The reality is that ESA restrictions impose major costs, and can seriously impair the ability of a small business to continue operations or to expand. Had the Court ruled otherwise, landowners would have been completely without recourse if the federal agency made a wrongful critical habitat designation without considering those impacts.”

In today’s decision, the Supreme Court held that the U.S. Fish & Wildlife Service is required by the Endangered Species Act to consider economic impacts on landowners when deciding whether to include or exclude private property from a critical habitat designation, meaning that landowners can seek to invalidate a critical habitat designation where the agency has ignored economic impacts.

In this case, the federal government had designated more than 1,500 acres of private property in Louisiana as “critical habitat” essential to the survival of the dusky gopher frog, despite the objection that the dusky gopher frog could not survive in this area without significant habitat modification.

The case has been remanded for further consideration in the Fifth Circuit, which has been charged with determining whether the 1,500 acres in question contained habitat or not for the dusky gopher frog.

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