The ability to challenge critical habitat designations on economic grounds is a game-changer. The Supreme Court has handed landowners a new tool to seek justice in the courts. This is a great day not only for Weyerhaeuser but for all private forest landowners,” Lauren Ward, FLA Director of Stewardship Initiatives.

  • Supreme Court rules “habitat” must be present for Critical Habitat Designation
  • Lower court to determine if closed canopy of planted pine plantations can serve as habitat for at-risk species
  • Economic burden to landowner must be considered and is subject to challenge by landowners in the courts

Logic prevails for private landowners on Chief Justice Roberts’ Court

The Forest Landowners Association hails the property rights victory of the unanimous ruling by the Supreme Court in favor of private property rights. Tuesday’s 8-0 decision in the Weyerhaeuser v. U.S. Fish and Wildlife case is a clear win for forest landowners.

Writing for the Court, Chief Justice Roberts sent the fate of the endangered dusky gopher frog back to the Fifth Circuit Court of Appeals with a grammar lesson. “According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat,’” Roberts wrote. “Adjectives modify nouns — they pick out a subset of a category that possesses a certain quality. It follows that ‘critical habitat’ is the subset of ‘habitat’ that is ‘critical’ to the conservation of an endangered species.”

Refreshingly, the Court came to a logical conclusion: there are clear limits to USFWS’s ability to designate land as critical habitat. Although the ESA allows the USFWS to designate certain uninhabited areas as critical habitat for the conservation of a species, Tuesday’s decision affirms the fact that the government does not have unlimited authority to seize private land. Good riddance.

Review of “habitat” opens door to challenge additional ESA designations

Specifically, the Supreme Court sent the case back to the Fifth Circuit court to determine whether closed canopy timberlands can count as habitat for a species dependent on open canopy longleaf conditions. Such a review could have serious implications for other longleaf dependent species with critical habitat designations established by the ESA. If plantation-style closed canopy pine does not meet the definition of habitat for the dusky gopher frog, then there will be grounds to argue that such conditions do not meet the habitat needs of the black pine snake, the Louisiana pine snake, the gopher tortoise, the southern hognose snake, and many others. FLA is working with the Administration and USFWS to reform the critical habitat designation process, minimize the number of private forest acres designated as critical habitat, and eliminate the economic burden private landowners bear under the ESA.

“From a private landowner’s perspective, we are encouraged by the Supreme Court’s decision to re-examine the definition of ‘habitat’ as it applies to endangered species. There have been too many occurrences where the designation of habitat has unfairly punished landowners and violated basic private property rights. Our family has personal experience with the economic impacts of habitat designations and having a clearer understanding of the ‘habitat’ moving forward will benefit all stakeholders involved,” stated Michael Crowell, 5th generation Louisiana landowner and FLA Member.

ESA critical habitat designations subject to judicial review

Of significant importance, the Supreme Court also ruled that the USFWS’s critical habitat designation is subject to judicial review. The Justices determined that the lower court “should have considered whether the government agency’s balancing of the benefits and costs of the designation — estimates ranged from nothing to a $33 million loss for the property owners — was flawed.” Landowners who believe their land has been designated without a proper weighing of the costs versus the benefits may now have their grievances heard – and remedied – in court. FLA is hopeful that such reviews of future ESA designations will protect private landowners from unfair and illogical seizures of their property at their personal cost.

The Wall Street Journal Editorial Board concluded their take on the case with the following: “Meantime, the dusky gopher frog would have a better chance of surviving in more places if the Endangered Species Act gave private land owners an incentive to protect wildlife rather than subjecting them to years of federal legal harassment.” FLA could not agree more.


Why FLA Cares about the Weyerhaeuser case

The security of private property rights has been a guiding principle for the work of the Forest Landowners Association since our formation in 1941. We have always been deeply troubled by the US Fish & Wildlife Service’s ability under the Endangered Species Act to designate private land as critical habitat without logical explanation or reasonable expectation of reimbursement of opportunity costs.

FLA stands firm for common sense conservation of species, but not at the expense of the landowner. FLA has been advocating common sense conservation with the USFWS service at every level.

The Trump Administration has proposed new regulations that would limit the circumstances under which unoccupied habitat can be designated, but even if finalized, these new regulations would still allow actions like the one at issue in this case to continue to happen. FLA has urged the Administration to take a stricter stance on this issue by restricting the Service’s ability to designate habitat that is unoccupied by the species.