On October 1, 2018, the U.S. Supreme Court heard oral argument in the first case of its new term, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, Dkt. No. 17-71. The case concerns the designation of critical habitat under the Endangered Species Act (ESA) for the dusky gopher frog (Rana sevosa) in an area that is not currently capable of sustaining a frog population. The central issue in the appeal is whether an area that currently does not possess some of the characteristics deemed essential for the frog’s survival may nevertheless be designated as unoccupied “critical habitat” for the species. The Court of Appeals for the Fifth Circuit previously affirmed a rule issued by the U.S. Fish and Wildlife Service (Service), 77 Fed. Reg. 35118 (June 12, 2012), that designated as critical habitat an area that is within the frog’s historic range but long ago was converted to densely planted commercial timberland that bears no resemblance to the open-canopied woodlands essential to the dusky gopher frog’s habitat.

The parties framed two central issues for the Court: (1) Weyerhaeuser argued that an area cannot be “critical habitat” for a species if it is not currently habitable by that species; (2) the Service argued that an area that is not currently habitable may nevertheless be “critical habitat” if it can be made habitable through reasonable efforts.

The justices’ questioning reflected the known divisions in the Court. Justice Kagan was first to speak, asking Weyerhaeuser’s counsel whether the company’s insistence that an area be currently habitable was consistent with the ESA’s focus on conservation of listed species. She framed the facts as presenting the Service with a choice between letting a species go extinct and designating an area that, while it cannot currently sustain the frog, could be made habitable through reasonable efforts and is necessary for the recovery of the species. Justice Alito followed with questions that allowed Weyerhaeuser’s counsel to identify other tools the ESA offers to avoid a species’ extinction, beyond designation of critical habitat, such as facilitating habitat acquisition.

Justice Sotomayor’s questioning picked up on factual arguments that the Service had advanced in its briefing, suggesting that the habitat in an area need not be optimal for a species to survive there and pointing out that the frog had been seen on the parcel in question in the 1960s, after active timber management had begun. The suggestion by the Service, echoed by Justice Sotomayor, was that the site in question might be habitable by the frog today, despite the absence of forest characteristics deemed to be primary elements of the frog’s habitat.

Justice Breyer, a potential swing vote in the case, framed the dispute as a typical agency case. He said the ESA directs the Secretary of the Interior to exercise discretion in designating critical habitat. It is common for statutes to grant this sort of discretion. The question is whether the Secretary properly exercised that discretion; whether the Secretary’s decision was reasonable. Breyer pressed Weyerhaeuser’s counsel on whether that was the right way to look at the case. When the lawyer responded that the Service was wrong and restoration here would require extreme efforts, Breyer retorted that he was not disagreeing with the framework Breyer had described, just with how Breyer read the record.

In line with Justice Breyer’s focus on the disputed designation as an exercise of agency discretion, the central focus of most of the questioning was the Service’s assertion that an area may be designated critical habitat if it may be capable of sustaining a species after it is modified through “reasonable efforts.” Chief Justice Roberts asked the Service’s counsel whether a pond in Alaska could be designated as critical habitat for the frog if a big greenhouse could be built next to the pond to provide for the forest elements of the frog’s habitat. While the Service’s counsel agreed that the Alaska pond could not be critical habitat, as it would be maintained through artificial means, Justice Breyer followed up with questions that probed the limits of the agency’s discretion.

Breyer asked the Service’s counsel where to draw the line between a site that Chief Justice Roberts described, which needs a greenhouse to support the animal, and habitat that can be used now. He did not get a direct response; the Service’s counsel said, in essence, it depends on the facts for each species. But several of the justices were dissatisfied with that response.

Justices Gorsuch, Alito, Roberts and Breyer all returned repeatedly to the question of whether the ESA provides direction or guidance as to the limits of what may be considered “reasonable efforts.” The Service’s counsel offered a distinction concerning areas that were previously habitat for an animal, differentiating between an area that was subsequently modified versus habitat that has been destroyed. He suggested that forest that has been converted to commercial timberland has been modified but its current use remains similar to the habitat conditions needed to sustain the frog, while habitat would be destroyed by being converted to a shopping center and would not be feasible to restore. Several justices questioned whether there was any support for that distinction in the statute.

The arguments presented the justices with two alternative readings of the ESA: a bright line that would prohibit designating an area as critical habitat if it is not currently habitable; and a grant of discretion to the Service to extend critical habitat to areas that could be made habitable through reasonable efforts. As the Court currently has only eight justices, and only those justices who attend oral argument vote on the outcome of an appeal, an even split is a distinct possibility. If that occurs, the Court could choose to have the case reargued after a ninth justice is confirmed, or with a tie vote could allow the Fifth Circuit’s decision to stand. But even if the Court issues a split decision, opinions in the case are likely to include important discussions of critical habitat concepts that will have repercussions for ESA cases nationwide.

It is likely to be several months before the Court issues its decision in this case. Please check back with us to see how the Court rules on this first case of its new term.