Supreme Court Unanimously Sides with NAHB Members in Dusky Frog Case

Filed in Codes and Regulations, Land Development, Legal by on November 28, 2018 0 Comments

frogThe U.S. Supreme Court Tuesday handed down a decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service, giving a huge victory to two NAHB members and land developers across the country.

The case examined the Fish and Wildlife Service’s designation of over 1,500 acres of private property in Louisiana as “critical habitat” for the endangered dusky gopher frog.

The Court of Appeals for the Fifth Circuit had ruled that the Service could designate the area as critical habitat even though the frog had not been seen in Louisiana since 1965 and it could not survive in the area unless the land and vegetation was physically altered.

In Tuesday’s 8-0 opinion, the Supreme Court disagreed. In a decision written by Chief Justice John Roberts, the Court explained that whether the 1,500 acres could be designated “critical habitat” depended on whether the area was indeed a habitat for the frog. Since the Fifth Circuit had specifically ruled that “critical habitat” did not have to be inhabitable, the Supreme Court ordered the lower court to reconsider that decision.

The justices also ruled that the Fifth Circuit improperly declined to review whether the economic impacts to the property owners outweighed the benefits to the gopher frog. The Court explained that “legal lapses and violations occur” when there are no consequences to federal agencies, and that is why there is a strong presumption favoring judicial review of agency actions.

The Court directed the Fifth Circuit to determine whether the Service properly considered the economic impacts before deciding not to exclude the area from the critical habitat designation.

NAHB has been involved in this case from the start. It filed briefs in both the Fifth Circuit and Supreme Court, and if necessary, it will continue to support NAHB members Markle Industries and Weyerhaeuser Company as the case is again heard at the Fifth Circuit.

For additional information, contact Vice President for Legal Advocacy Tom Ward.

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