In an ongoing battle between landowners and the federal government, the U.S. Supreme Court unanimously ruled against the U.S. Fish and Wildlife Service, in Weyerhaeuser Co. vs. U.S Fish and Wildlife Service, when it designated private land in Louisiana as “unoccupied critical habitat.” In a significant portion of the Court’s opinion, it also ruled against the government’s effort to block judicial review of that designation. Had the Supreme Court upheld the Fifth Circuit’s determination and denied judicial review, agencies throughout the government would be permitted to make unconstrained decisions, potentially depriving individuals and businesses affected by the regulatory powers of the administrative state of their right to challenge agency abuse and discretion in court.
Today’s decision marks an important victory in our ongoing effort to reign in the government’s abuse of power and ensure citizens can seek recourse in the courts when the government infringes on our freedoms. We filed an amicus brief in this case because it was clear that the government had abused its discretion by designating inhabited and inhabitable land as “unoccupied critical habitat,” and then blocked the rights of citizens subject to these decisions to seek review and recourse from the courts.
The designation of private land in Louisiana as “unoccupied critical habitat” at issue in this case is not only questionable on its face, as the species it’s intended to conserve cannot survive on the land as it is now, but it also significantly threatens the economic freedom and property rights of the landowners, potentially costing them $34 million in lost development opportunities. Lower courts previously determined that the agency action in this case, though “odd,”[1] is not subject to judicial review and subsequently deferred to the agency’s decision.
As CoA Institute pointed out to the court in our amicus brief, and as the Supreme Court stated in its opinion, there is a “strong presumption favoring judicial review of administrative action.”[2] Further, the narrow exception to judicial review of agency action under Section 701(a)(2) of the Administrative Procedure Act only applies when the action falls within one of the traditional categories committed to agency discretion or is one of the “rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.”[3] These exceptions are intended to reduce and specify the circumstances in which agency action is exempt from judicial review, not broaden them. The Supreme Court notes that not only does the Service’s decision in this case fail to apply to one of the exceptions, but it “involves the sort of routine dispute that federal courts regularly review.”[4]
In addition to addressing whether the agency’s action was subject to judicial review, the Supreme Court was asked to address whether the ESA prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation. In its opinion, the Supreme Court asked the Fifth Circuit to consider the meaning of the word “habitat” in its decision, for the land at issue must first and foremost be “habitat” if it is to be designated as “critical habitat.” Additionally, they asked the Fifth Circuit to consider whether the Service’s cost and benefits analysis of the designation was flawed and thus made the Service’s decision not to exclude the land at issue “arbitrary, capricious, or an abuse of discretion.”[5]
Read more about this case in our previous blog post here.
Libby Rudolf is a litigation support analyst at Cause of Action Institute.
[1] Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 40 F. Supp. 3d. 744, 758–59 (E.D. La. 2014).
[2] Mach Mining, LLC v. Equal Emp’t Opportunity Comm’n, 135 S. Ct. 1651 (2015).
[3] Lincoln v. Vigil, 508 U.S. 182, 191 (1993).
[4] Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No. 17-71, slip op. at 12 (U.S. Nov. 27, 2018).
[5] Id. at 15.