Dusky Gopher Frog Case Lives On

Filed in Codes and Regulations, Legal by on May 16, 2019 4 Comments

frogLate last year, the U.S. Supreme Court issued a unanimous decision that was favorable to NAHB members in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, better known as the Dusky Gopher Frog case.

The Court found that an area of land is eligible for designation as “critical habitat” under the Endangered Species Act only if it is a habitat for listed species. And any decision not to exclude an area from critical habitat is subject to judicial review.

The Court remanded the case to the Fifth Circuit to define the word “habitat.” The Fifth Circuit then punted to the Fish and Wildlife Service (FWS) and tasked the very agency that lost the case with creating a new definition for “habitat.”

Concerned that a hard-fought victory at the Supreme Court might be upended by the FWS, NAHB proactively filed a coalition comment letter in April recommending a regulatory definition of “habitat.”

Among other things, the letter suggests a definition that specifies that only those areas that are actually habitable at the time of critical habitat designation are “habitat,” an issue that was central to the case.

It is critically important that industry groups like NAHB stay involved in litigation even after cases are seemingly decided. In this case, the responsibility for redefining a litigated word resting with a losing party could undermine a unanimous Supreme Court decision.

For further updates on NAHB litigation activities, read the Spotlight on NAHB Litigation for Spring 2019.

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Comments (4)

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  1. Helen McCarthy says:

    So the NAHB prefers building to endangered frogs? That isn’t actually stated, but alluded to, and I can’t think of another reason for this article. Am I reading and understanding this correctly?

  2. Mark Edy says:

    Can you provide any insight into why this habitat had not been used for forty years by this species? In many cases, the habitat for other living things has been disturbed by what man has done. Examples could be building of a road such that drainage into a wetlands was lost or movement of soil by machine that altered the landscape. Usually there would be a reason for a habitat being abandoned.

    • NAHB Now says:

      The facts of the case state that the frog has not lived in Louisiana in 40 years, not just the 1,500 acre tract in question, but in the entire state. I’m not sure if the Supreme Court ruling goes into why the frog has been absent all those years.

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