On January 22, 2018, the U.S. Supreme Court granted review of the petition for writ of certiorari in Weyerhauser Co. v. U.S. Fish and Wildlife Service, No. 17-71. Petitioners challenge a 2-1 panel decision issued by the United States Court of Appeals for the Fifth Circuit, affirming a rule issued by the U.S. Fish and Wildlife Service (Service) designating “critical habitat” for the dusky gopher frog (Rana sevosa) and including areas within critical habitat that the frog could not currently inhabit.
The dusky gopher frog spends most of its life underground in open-canopied pine forests. Historically, it was found in parts of Louisiana, Mississippi, and Alabama, but its present known distribution is limited to Mississippi. The Service promulgated a final rule designating critical habitat for the species in 2012. 77 Fed. Reg. 35118 (June 12, 2012). Petitioners own land designated critical habitat for the dusky gopher frog, including land that is not currently habitable by the species. The Service designated this land as critical habitat despite the fact that it is not habitable on the grounds that it is essential to the conservation of the dusky gopher frog. The principle issues presented to the Court are how to interpret the critical habitat provisions of the Endangered Species Act and how much deference to give to the Service’s interpretation of those provisions.