Supreme Court Rules Economic Impact of Fish and Wildlife Decision Subject to Judicial Review

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.

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

[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,

Pitfalls of Politicization

Disregard of legal standards that apply to everyone to achieve immediate political goals is never good. Politicization tends towards pernicious, unpredictable results.  It is particularly erosive when it infects the administration of justice.  Developments in Texas v. United States, a federal case testing the limits of the President’s and Congress’s authority to set immigration policy, demonstrate just how—and how much—politicization can undermine the rule of law.

Back in May 2016, Judge Andrew Hanen of the Southern District of Texas found that lawyers representing the United States made a series of misstatements to the court and the 26 plaintiff States and that those lawyers knew the truth when they spoke. In 2014 and 2015 those lawyers misrepresented, among other things, timing under an executive order that expanded an immigration program to millions of additional persons, most of whom were parents of children born here as citizens, for whom permissible work periods were expanded to three years. Arising from the interplay of immigration, constitutional, and administrative law, the legal issues in Texas v. United States were complex.

But the problematic misrepresentations by the Justice Department’s lawyers were straightforward. The lawyers for the United States said that the immigration authorities wouldn’t start implementing the program before February 2015.  That led the court and 26 States to forego extraordinary proceedings for emergency relief that might have resulted in a restraining order expressly preventing implementation by the federal government.  The same lawyers also misrepresented how many three-year extensions were at issue, and the government granted over 100,000 before the truth came out in court. “[T]he Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.”   The misrepresentations enabled the government to do broadly what could have been expressly restrained.

The court, quite reasonably, asked Why? The DOJ gave several reasons, none sufficient.   The scores of government lawyers working on the case “lost focus” on the facts which had “receded in memory or awareness.”  That excuse gives away the cake:  it admits a breach of every lawyer’s duty of competence.  The government’s other excuse was that many lawyers were responsible for the case, spread across multiple agencies.  The government’s disingenuous conclusion was that any remedy should only apply to the handful of lawyers who appeared in court.  Two weeks ago, on the last full day of the Obama administration, the government lost.  The court ruled, “[a]t the very least, the Justice Department should, in an organized manner, require its attorneys to review and understand each state’s ethical rules before those attorneys appear in that state. This is a minimum requirement.”

Indeed, the court’s requirement is, if anything, too minimal and the Justice Department escaped by the skin of its teeth the Court’s more fulsome wrath from May. Commentators who previously administered Justice in prior Republican and Democratic administrations, however, suggest a more plausible, but still insufficient, reason for the misconduct:  politicization at the Department of Justice.   That should trouble everyone, regardless of party affiliation.

The federal government’s omission of facts that have “receded” or “lost focus” in the service of a legal victory for its current political masters must never be acceptable, minimized, or considered “normal” mistakes, regardless of their complexity. Current events show why.  The most troubling aspects of Texas v. United States arose during the Obama administration.  But headlines during the first weeks of the Trump administration reveal the political staying power of at least four horsemen: Executive Orders, judicial review, immigration, and administration representations. Politicization will undermine the validity of them all.

Mike Geske is counsel at Cause of Action Institute

Supreme Court Ruling Protects Property Rights

Today, the United States Supreme Court issued an 8-0 opinion in U.S. Army Corps of Engineers v. Hawkes Company protecting landowners’ right to meaningfully challenge government overreach and arbitrary deprivation of private property rights.  The Court rejected the Corps’ argument that a federal court was not allowed to weigh in on the agency’s assertion of jurisdiction to regulate the Hawkes Company’s use of its own land to mine peat unless the company first spent hundreds of thousands of dollars to complete a time-consuming, complicated government permitting process. Cause of Action (CoA) Institute filed an amicus brief in support of the Hawkes Company, which was represented by the Pacific Legal Foundation.   The Court held that an approved Jurisdictional Determination (approved JD)—a federal agency determination that private property contains “waters of the United States” subject to the Clean Water Act (CWA) and the Environmental Protection Agency (EPA) “Waters of the United States” (WOTUS) regulation— is judicially reviewable under the federal Administrative Procedure Act (APA).

In its amicus brief, CoA Institute argued that the Corps approved JD deprived Hawkes of a property interest protected by the Fifth Amendment to the federal Constitution because it reduced the value of its land by preventing Hawkes from mining peat on it without fear of an EPA enforcement action.  Coupled with substantial criminal and civil penalties for CWA violations, a due process violation would result if immediate APA review of the Corps-approved JD is unavailable.

Justices Kennedy, Thomas, and Alito appear to share CoA Institute’s due process concerns and agree that the Constitution requires immediate judicial review of the federal government’s assertion of jurisdiction to regulate private property under the CWA.  In a concurring opinion joined by Justices Thomas and Alito, Justice Kennedy said that “the Court is right to construe a JD as binding in light of the fact that in many instances it will have a significant bearing on whether the Clean Water Act comports with due process.”  Justice Kennedy wrote that the CWA, “especially without the JD procedure were the Government permitted to foreclose it, continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”  CoA Institute applauds this unanimous Supreme Court decision protecting landowner property and due process rights.