U.S. Fish and Wildlife Service Attempts to Evade Judicial Review of an Unnecessary Critical Habitat Designation That Would Significantly Cost Landowners

On August 8, 2018, the U.S. Solicitor General sent a letter to the Supreme Court informing them of a proposed rule change published by the U.S. Fish and Wildlife Service (the “Service”) that would relate to a pending case: Weyerhaeuser Company v. U.S. Fish & Wildlife Service. While the proposed rule would only apply to future critical habitat designations and would not permit a reevaluation of the designation at issue in Weyerhaeuser, the proposed changes do relate to the underlying issues in the case and would support the argument Cause of Action Institute (“CoA Institute”) made in its amicus brief that the Service’s actions are subject to judicial review.

On April 30, 2018, CoA Institute filed an amicus curiae brief in Weyerhaeuser in support of Petitioner, Weyerhaeuser Company. The company asked the Supreme Court to review the Fifth Circuit’s decision upholding the Service’s questionable designation of 1,544 acres of private land in Louisiana, identified as “Unit 1,” as “unoccupied critical habitat” for the dusky gopher frog, an endangered species. As the Service has acknowledged, Unit 1 is not only currently uninhabitable by the dusky gopher frog, but the critical habitat designation could result in up to $34 million of lost revenue for the private landowners. Simply put, the designation of Unit 1 as critical habitat is not necessary for the conservation of the dusky gopher frog but would come at a significant cost to the landowners. Nevertheless, the Service included Unit 1 as critical habitat. Completely ignoring the landowners’ interests, the Service is forcing these individuals to forfeit a significant profit from their land for a frog that has not been able to survive on their land for over 50 years.

Weyerhaeuser Company, who leases the land at issue, along with other Unit 1 landowners, challenged this designation in 2013, alleging that because Unit 1 is uninhabitable by the dusky gopher frog, Unit 1 is not essential for the conservation of the frog as required by the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., for unoccupied critical habitat. Additionally, Weyerhaeuser argues that the Service did not adequately weigh the costs of inclusion against the benefits of exclusion, failing to effectively consider the significant economic costs the landowners will have to endure from lost development opportunities.[i] The district court recognized that the agency action in this case is “odd,” but it nonetheless proceeded to grant summary judgment in the Service’s favor, deferring to the agency action and finding itself “without power” to overturn it.[ii]

On appeal, a divided Fifth Circuit panel affirmed the district court.[iii] The Fifth Circuit held that, under the Administrative Procedure Act (“APA”), the Service’s decision not to exclude Unit 1 was discretionary and not subject to judicial review, a decision that, if it remains unchecked, could give excessive and unregulated power to not only the Service but throughout the administrative state.[iv] After being denied a petition for rehearing en banc, Weyerhaeuser Company petitioned the Supreme Court to address the following two questions:

  1. Whether the ESA prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation.
  1. Whether an agency decision not to exclude an area from critical habitat designation because of the economic impact of the decision is subject to judicial review.

While CoA Institute agrees with Petitioner on both issues, it chose to address the latter question in its brief because of the momentous consequences it perceives on the administrative state if the Service’s determinations are not subject to judicial review.

In her dissent from denial of rehearing en banc, Judge Jones expresses these same concerns by warning that the “ramifications” of the panel’s decision regarding judicial review of agency action “cannot be underestimated.”[v] Should the Fifth Circuit’s determination stand, agencies throughout the administrative state could be permitted to make unconstrained decisions.

In its brief, CoA Institute argues that the Fifth Circuit’s determination that judicial review is precluded under the APA’s § 701(a)(2) exception, which states that judicial review will not apply when “agency action is committed to agency discretion by law,” is erroneous. The court failed to perform the necessary analysis required to make this determination, and had the court done so, it would have been clear that the Service’s actions in this instance are subject to judicial review. The Supreme Court has recognized that there is a “‘strong presumption’ favoring judicial review of administrative action” because “Congress rarely intends to prevent courts from enforcing its directives to federal agencies.”[vi] The Fifth Circuit’s conclusory determination in this case, however, contradicts this “strong presumption” of reviewability, because the court instead seems to have wrongly relied on a strong presumption of “unreviewability.”[vii]

CoA Institute argues that, in failing to apply the “strong presumption” of judicial review of agency action, the lower courts did not perform the “careful examination” that the exception requires. The only way for judicial review to be barred in this case, under the § 701(a)(2) exception, is if the language in the ESA that describes how the Secretary makes critical habitat determinations  is drawn in such a way that it precludes a reviewing court from having a “meaningful standard against which to judge the agency’s exercise of discretion.”[viii] To determine this, the court would have needed to conduct a more-adequate examination of the language of the ESA.

Instead of conducting this essential examination of the statutory language, the Fifth Circuit relied on caselaw from the Ninth Circuit and several district courts that suffer from similar analytical ailments. In its brief, CoA Institute performs that careful examination of the ESA’s statutory language, showing that the language of 16 U.S.C § 1533(b)(2) and the overall structure of the ESA do not preclude judicial review. We depend on our courts to conduct the analyses necessary to ensure that government agencies are acting justly and not needlessly impeding individuals lives, a step which the Fifth Circuit failed to do in this case. Had the Fifth Circuit applied the “strong presumption” of judicial reviewability of agency actions, conducted the “careful examination” that is required to establish that judicial review is precluded under § 701(a)(2), and not simply relied on previous erroneous findings in other courts, it would have been evident that the Service’s decision is subject to judicial review.

In its recent notice of proposed rulemaking, the Service offers revisions to portions of the regulations implementing Section 4 of the ESA that would create an even more “meaningful standard” that reviewing courts could use to judge the agency’s use of discretion. Specifically, the proposed rule “provides additional predictability to the process of determining when designating unoccupied habitat may be appropriate”[ix] by clarifying when the Secretary may determine that unoccupied areas are essential for the conservation of a species.

The current rule only provides two ambiguous situations when unoccupied areas would be considered essential to species conservation, while the proposed rule will include additional situations that would clarify the meaning of “essential.” For example, the proposed rule would require that the Secretary determine “that there is a reasonable likelihood that the area will contribute to the conservation of the species.”[x] Additionally, the Service would consider the “current state of the area and the extent to which extensive restoration would be needed for the area to become usable,” and how willing a non-federal landowner is to undertake such restoration.[xi] This language articulates an even stronger and “meaningful” standard that the Service uses in determining whether to exclude an area in a critical habitat designation, making the §701(a)(2) exception to judicial review even more inapplicable to this type of agency action. Even more, should this rule become final, this more-clearly articulated standard will ensure that the essential steps are being taken to conserve endangered species without unnecessarily hindering landowners’ use of their land – a win-win situation.

Comments regarding the proposed rule are due September 24, 2018. The Supreme Court will hear oral argument in Weyerhaeuser on October 1, 2018.

Libby Rudolf is a litigation support analyst at Cause of Action Institute.


[i] Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 40 F. Supp. 3d. 744, 759–760 (E.D. La 2014).

[ii] Id. at 758–59.

[iii] Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 827 F.3d 458 (5th Cir. 2016).

[iv] Id. at 473–75.

[v] Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 848 F.3d 635 (5th Cir. 2017).

[vi] Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n, 135 S. Ct. 1651 (2015).

[vii] Brief for Petitioner at 48, Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No. 17-71 (U.S. Apr. 23, 2018), available at http://bit.ly/2PrkGjz.

[viii] Heckler v. Chaney, 470 U.S. 830 (1985).

[ix] Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Listing Species and Designating Critical Habitat, 83 Fed. Reg. 35193 (proposed July 25, 2018) (to be codified at 50 C.F.R. pt. 424).

[x] Id. at 35198

[xi] Id.

CoA Institute Encourages Supreme Court to Provide Check on Federal Agencies in Latest Amicus Brief

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed an amicus curiae brief in the Supreme Court case Weyerhaeuser v. U.S. Fish and Wildlife Service, arguing that United States Fish and Wildlife Service’s (FWS) authority to exclude an area of land from critical habitat designation under the Endangered Species Act is not discretionary, but rather is subject to judicial review.

“Previous Supreme Court precedent as well as the Endangered Species Act make it clear that the Fish and Wildlife Service is subject to judicial review when it comes to determining what is and isn’t a critical habitat,” said John Vecchione, CoA Institute President and CEO. “We look forward to the Court upholding its previous standard and providing a check for the administrative state.”

CoA Institute’s brief encourages the Supreme Court to reverse the Fifth Circuit ruling in this case because it failed to conduct the sort of “careful examination” required by law to determine if FWS is excluded from judicial review.

The Supreme Court will hear argument in Weyerhaeuser during the fall 2018 term.

The amicus brief is available here.

About Cause of Action Institute
Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For more information, please contact Mary Beth Gombita, mbgcomms@gmail.com.

Read Mark Steyn’s Comments on CoA Institute’s Amicus Curiae Brief

Last week, Cause of Action Institute filed an amicus curiae brief on behalf of Dr. Judith A. Curry. Read Mark Steyn’s rundown of the brief here.

The brief itself can be found here.

February 28, 2017 Update:

Today, the District of Columbia Court of Appeals ordered Michael Mann to file a response to the Competitive Enterprise Institute’s petition for rehearing en banc.  This is a good sign that the court is taking the petition seriously and digging into the issues.  We hope that they grant the petition and overturn the panel.

Shaun McCutcheon et al v. Federal Election Commission- AMICUS CURIAE SUPPORTING APPELLANTS

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Amicus Curiae