Weyerhaeuser Company v. United States Fish and Wildlife Service
 | |
| Weyerhaeuser Company v. United States Fish and Wildlife Service | |
| Term: 2018 | |
| Important Dates | |
| Argument: October 1, 2018 Decided: November 27, 2018 | |
| Outcome | |
| Vacated and remanded | |
| Vote | |
| 8-0 | |
| Majority | |
| Chief Justice John G. Roberts • Clarence Thomas • Ruth Bader Ginsburg • Stephen Breyer • Samuel Alito • Sonia Sotomayor • Elena Kagan • Neil Gorsuch | |
Weyerhaeuser Company v. United States Fish and Wildlife Service is a 2018 United States Supreme Court case that questioned whether the Endangered Species Act (ESA) granted the U.S. Fish and Wildlife Service (FWS) the authority to designate private land as critical habitat for the dusky gopher frog and whether the agency's interpretation and critical habitat designation was subject to judicial review. The court held 8-0 to vacate the decision from the United States Court of Appeals for the 5th Circuit and remand the case—directing the Fifth Circuit to consider in the first instance whether the FWS' critical habitat designation was arbitrary, capricious, or an abuse of discretion. Oral argument in the case was held on October 1, 2018, as part of the court's 2018-2019 term. The case came on a writ of certiorari to the United States Court of Appeals for the 5th Circuit.[1][2]
The case involved FWS' designation of private land in Louisiana as critical habitat for the dusky gopher frog. Landowners challenged the designation, which would have required them to take a variety of actions including replacing existing trees with different species, halting timber management activities, and allowing the land to be managed and populated with frogs. The Fifth Circuit affirmed the district court's ruling and applied Chevron deference to yield to FWS' interpretation of the ESA and uphold the critical habitat designation.[3][1][4][5]
Why it matters: The case provided a potential opportunity for the U.S. Supreme Court to address judicial deference to agency interpretations of the statutes that they administer, including the Fifth Circuit's application of Chevron deference in the case. However, the U.S. Supreme Court declined to consider judicial deference in its decision. Instead, the court's ruling centered on judicial review—the court held that FWS' action to designate critical habitat was reviewable, but it relied on a narrow reading of the relevant statute and did not define the limits of what constitutes discretionary agency actions, which are not subject to judicial review in all cases.[1][2][4]
Background
| Administrative State |
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| • Judicial deference • Nondelegation • Executive control • Procedural rights • Agency dynamics |
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Case background
- See also: Critical habitat and Endangered Species Act
The Endangered Species Act (ESA) requires the U.S. Fish and Wildlife Service (FWS) to designate areas of critical habitat for endangered species. In 2010, FWS designated 1,957 acres in Mississippi as critical habitat for the dusky gopher frog. The scientists consulted by FWS claimed that the designated acreage was insufficient and the area was revised to include 6,477 acres of land in Mississippi and Louisiana.[3]
The FWS critical habitat designation would require the landowners to take a variety of actions including "chopping down their closed-canopy, loblolly pines and replacing them with open-canopied longleaf pines; burning the new forest with 'frequent fires' to 'support a diverse ground cover of herbaceous plants' ... terminating 'on-going timber management of the site, which precludes burning or planting longleaf pine trees'; allowing most or all of the land to be 'managed' as refuge for the frog at a cost of tens of millions of dollars in lost development value, and agreeing to 'frog translocations,'" according to the Washington Times.[5]
Dusky gopher frogs "spend most of their lives underground in open-canopied pine forests" and must "migrate to isolated, ephemeral ponds to breed," according to information provided in the Fifth Circuit opinion. Ephemeral ponds only contain water during certain seasons, and thus they do not contain predatory fish and are relatively rare. Unit 1, the section of the designated land that falls within Louisiana, contained five ephemeral ponds at the time of its designation. At the time that dusky gopher frogs were listed as an endangered species, there were only about 100 wild dusky gopher frogs in existence, all in Mississippi. The frog historically lived in Louisiana and Alabama, but had not done so for decades.[3]
The landowners (Markle Interests LLC, P&F Lumber Company 2000 LLC, PF Monroe Properties LLC, and Weyerhaeuser Company) collectively own all of the designated land within Louisiana labeled Unit 1. Weyerhaeuser Company holds a long-term timber lease for the entire area. The landowners challenged the critical habitat designation of the land within Unit 1 by filing actions for declaratory judgment and injunctive relief against FWS and its director as well as the U.S. Department of the Interior and its secretary. The district court granted summary judgment in favor of FWS on the merits and the landowners appealed the decision.[3]
Key concepts: administrative law
- See also: Administrative state
Weyerhaeuser raised questions concerning the following administrative law principles:
- Judicial deference
Judicial deference is a principle of judicial review. In the context of administrative law, deference applies when a federal court yields to an agency's interpretation of either a statute that Congress instructed the agency to administer or a regulation promulgated by the agency. The U.S. Supreme Court has developed several forms of deference in reviewing agency actions, including Chevron deference, Skidmore deference, and Auer deference.[6][7]
The Fifth Circuit affirmed the district court's ruling in Weyerhaeuser and applied Chevron deference to yield to FWS' interpretation of the ESA and uphold the critical habitat designation. The case provided a potential opportunity for the United States Supreme Court to address Chevron deference, but the court declined to consider judicial deference in its decision.[2]
- Arbitrary-or-capricious test
The arbitrary-or-capricious test is a legal standard of review used by judges to assess the actions of administrative agencies. It was originally defined in a provision of the 1946 Administrative Procedure Act (APA), which instructs courts reviewing agency actions to invalidate any that they find to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The test is most frequently employed to assess the factual basis of an agency's rulemaking, especially informal rulemakings.[8][9][10][11]
The landowners in Weyerhaeuser argued that FWS unreasonably interpreted the word essential in the ESA so as to place no "meaningful limits" on its own power and allow FWS to arbitrarily designate any private land in the country as critical habitat. Judge Higginson of the Fifth Circuit countered that the advice of scientific experts and public input received during comment periods allowed for sufficient protection against arbitrary decisions by the agency. The United States Supreme Court, however, vacated and remanded the Fifth Circuit's ruling and directed the appellate court to consider in the first instance whether the FWS' critical habitat designation was arbitrary, capricious, or an abuse of discretion.[2]
- Judicial review
Judicial review refers to the authority of the courts to interpret the law and overturn any legislative or executive actions that are inconsistent with the law. The APA provides for judicial review of agency actions except for actions pursuant to statutes that explicitly preclude judicial review or actions that are committed to agency discretion by law.[12][13]
In Weyerhaeuser, FWS argued that its critical habitat designation was committed to agency discretion by law. The agency claimed that the relevant provision of the ESA was "one of those rare provisions 'drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” according to Chief Justice John Roberts' opinion. The Fifth Circuit agreed with the agency's position. The United States Supreme Court, however, disagreed and held that FWS' action to designate critical habitat was reviewable and constituted "the sort of claim that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion." However, the court relied on a narrow reading of the relevant statute and did not define the limits of judicial review of discretionary agency actions.[2]
United States Court of Appeals for the 5th Circuit
| |
| Weyerhaeuser Company v. United States Fish and Wildlife Service | |
| Reference: No. 14-31008 | |
| Important Dates | |
| Decided: June 30, 2016 | |
| Outcome | |
| United States District Court for the Eastern District of Louisiana affirmed | |
| Majority | |
| Stephen Higginson • Thomas Reavley | |
| Dissenting | |
| Priscilla Richman | |
The United States Court of Appeals for the 5th Circuit ruled 2-1 that the FWS designation was neither arbitrary nor capricious, did not violate the Commerce Clause, and did not violate the National Environmental Policy Act. The case was decided on June 30, 2016.[3]
Judge Stephen Higginson authored the majority opinion, joined by Judge Thomas Reavley. Judge Priscilla Richman authored a dissenting opinion.[3]
Opinion of the court
Writing for the court, Judge Stephen Higginson identified three key challenges to the designation. The landowners alleged that the FWS' designation of Unit 1 as critical habitat:
- Failed the arbitrary-or-capricious test set by the Administrative Procedure Act
- Exceeded Congress' power to regulate interstate commerce under the Commerce Clause
- Violated the National Environmental Policy Act by failing to issue an environmental impact statement[3]
Arbitrary-or-capricious test
- See also: Arbitrary-or-capricious test
Higginson first established that the landowners had standing to challenge the designation under both Article III of the United States Constitution and the zone-of-interests test (see Association of Data Processing Service Organizations v. Camp). He then exercised Chevron deference in reviewing the designation, which required him to determine whether the FWS had reasonably interpreted Congress' intent in the ESA.
Higginson stated that FWS had chosen the site with the advice of experts, who had identified ephemeral ponds as a key factor and had not found any suitable sites in other states. He echoed the district judge, who had considered this to be a "permissible interpretation of the ESA."[3] The landowners argued that Unit 1 could not be considered essential to the conservation of the dusky gopher frog because the land was not currently supporting the frogs nor, in their estimation, likely to do so in the foreseeable future. Higginson did not find a "habitability requirement in the text of the ESA or the implementing regulations" or a deadline for conserving a species, thus concluding that FWS had not unreasonably interpreted the ESA.[3] To apply the landowners' logic would, in his view, give private parties the power to exclude all land not currently occupied by endangered species, which would undermine that section of the act.[3]
As Judge Feldman of the district court argued, and Judge Higginson affirmed, "Nothing in the ESA requires that private landowners be willing to participate in species conservation." The judges stated, however, that designated land did carry some economic stigma and would likely cause a decrease in property value. The ESA did require the agency to consider the economic impact of any designation, but Judge Higginson ruled that under the Administrative Procedure Act (APA), such decisions are discretionary and, therefore, are not reviewable.[3]
The landowners argued that FWS unreasonably interpreted the word essential in the ESA so as to place no "meaningful limits" on its own power. They argued that this interpretation would allow the agency to arbitrarily designate any private land in the country as critical habitat. Judge Higginson countered that the agency is required to make such decisions based on the advice of scientific experts, as well as public input received during comment periods, which allows for sufficient protection against arbitrary decisions.[3]
The landowners also claimed that the designation of Unit 1 was improper when the agency had other options at its disposal, such as purchasing the land. Judge Higginson responded that the "legal availability of other statutory conservation mechanisms" did not preclude FWS from making the designation.[3]
Judge Higginson concluded that FWS' designation of Unit 1 as critical habitat was neither arbitrary nor capricious.
Commerce Clause
The landowners next argued that the agency's designation of Unit 1 as critical habitat exceeded Congress' powers under the Commerce Clause in Article I, Section 8 of the United States Constitution, which gives it the power to regulate interstate commerce. The landowners claimed that the use of Unit 1 for conservation was a purely intrastate, non-economic activity, and did not fall under congressional authority.[3]
Following the guidelines set in United States v. Lopez, Judge Higginson placed the designation within the third Lopez category since it was a federal action that substantially affected interstate commerce. The guidelines set in Lopez and United States v. Morrison held that if an activity constituted an essential part of a larger economic regulatory scheme, then it could be considered an economic activity under congressional jurisdiction.[14] Higginson argued that since GDF Realty v. Norton had defined the ESA as an economic regulatory scheme, critical habitat designation formed an essential part of that scheme and was within Congress' authority.[15] Moreover, Higginson held that even if the designation and use of Unit 1 did not directly affect interstate commerce, it should be considered alongside all other critical habitat designations, which affect interstate commerce on the aggregate level and are constitutional. Higginson concluded, therefore, that the designation of Unit 1 as critical habitat was constitutional and did not violate the Commerce Clause.[3]
National Environmental Policy Act
Lastly, the landowners argued that FWS had "violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement (EIS) before designating Unit 1 as critical habitat." NEPA requires a federal agency to prepare an EIS before undertaking an action that will "significantly affect the quality of the human environment."[16] Judge Higginson affirmed Judge Feldman's claim that the designation of Unit 1 did not require an EIS because it did "not effect changes to the physical environment" and did not require the landowners to participate in the conservation efforts. Higginson further added that the landowners did not fall within NEPA's zone of interests because the act was intended to protect the environment. He concluded that the landowners lacked standing to sue to enforce the act's EIS requirement.[3]
In his examination of the landowners' claims related to NEPA, Higginson held that an individual's claim of lost potential development value did not grant them standing to sue under NEPA since the law was intended to protect the environment and not individual economic interests. He quoted an earlier ruling from the Ninth Circuit which held that "a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA."[3][17]
Judicial review
In his review of FWS' actions under the APA, Judge Higginson cited the precedent that an agency's discretionary decisions are not subject to judicial review:
| “ | Thus, even were we to assume that the Landowners are correct that the economic benefits of exclusion outweigh the conservation benefits of designation, the Service is still not obligated to exclude Unit 1. That decision is committed to the agency’s discretion and is not reviewable.[3][18] | ” |
Dissenting opinion
In her dissenting opinion, Judge Priscilla Richman disagreed with the majority's interpretation of FWS' power to designate lands currently unoccupied by an endangered species as critical habitat. She echoed the landowners' fear that allowing the designation would empower the agency to designate any private land as critical habitat, since it could theoretically be turned into a suitable home for a particular species. Furthermore, she argued that since the federal government had no power to force the landowners to cooperate with a reintroduction plan—which would involve replacing the existing trees and performing annual maintenance for the indefinite future—it was unlikely that such a plan would ever come to fruition within Unit 1.
Owen also disagreed with the majority's affirmation of the agency's interpretation of the word essential with respect to critical habitat. She reiterated her concern that the frogs did not currently live in Unit 1, and argued that the agency was downplaying the work necessary to transform the area into a suitable habitat for them. In her view, the majority should have provided more definition and guidance for what constituted essential habitat, especially since relying on the advice of scientists would not necessarily prevent the agency from abusing its power to designate unoccupied private land. She further argued that the majority was adding extra provisions to the ESA and enlarging the agency's power to designate land.[3]
United States Supreme Court
Petitioner's challenge
The petitioners, the landowners of Unit 1, are challenging FWS' authority under the ESA to designate private land that is not currently an endangered species' habitat or essential to species conservation as critical habitat. The petitioners are also challenging whether FWS' discretionary action in designating critical habitat is subject to judicial review.[1]
Question presented
| Question presented: "(1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review."[1] |
Oral argument
Oral arguments were heard on October 1, 2018.[1]
Reactions after oral argument
Writing for SCOTUSblog, Lisa Heinzerling said that Chevron deference did not come up in the course of oral argument despite the 5th Circuit's reliance on Chevron. She said that Justice Stephen Breyer thought the case involved "whether the agency had strayed beyond the discretion given to it under the relevant statute."[19]
Adam Liptak, at the New York Times, said the justices "seemed largely divided along ideological lines in the case." He said the "more liberal ones seemed inclined to defer to the government’s decision, and the more conservative ones appeared wary of its impact on private property."[20]
Audio
- Audio of oral argument:[21]
Transcript
- Read the oral argument transcript here.
Decision
The United States Supreme Court held 8-0 to vacate the decision from the Fifth Circuit and remand the case. The majority opinion was written by Chief Justice John Roberts and joined by Justices Elena Kagan, Clarence Thomas, Samuel Alito, Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Neil Gorsuch. Justice Brett Kavanaugh did not take part in the consideration of decision of the case.[2]
Opinion
The Supreme Court instructed the Fifth Circuit to consider in the first instance whether the FWS' critical habitat designation was arbitrary, capricious, or an abuse of discretion:[2]
| “ | The Court of Appeals concluded that 'critical habitat' designations under the statute were not limited to areas that qualified as habitat. See 827 F. 3d, at 468 ('There is no habitability requirement in the text of the ESA or the implementing regulations.'). The court therefore had no occasion to interpret the term 'habitat' in Section 4(a)(3)(A)(i) or to assess the Service’s administrative findings regarding Unit 1. Accordingly, we vacate the judgment below and remand to the Court of Appeals to consider these questions in the first instance.[2][18] | ” |
The court disagreed with FWS' position that the critical habitat designation was committed to agency discretion by law and, therefore, not subject to judicial review. The court held that FWS' action to designate critical habitat was reviewable and constituted "the sort of claim that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion." However, the court relied on a narrow reading of the relevant statute and did not define the limits of judicial review of discretionary agency actions.[2]
Text of the opinion
Impact for judicial review
The United States Supreme Court held in Weyerhaeuser that FWS designations of critical habitat under the Endangered Species Act are subject to judicial review. Below are responses to the question of how the Weyerhaeuser decision will impact judicial review of administrative actions:
Damien Schiff, a senior attorney for the Pacific Legal Foundation, wrote in The Hill that the Weyerhaeuser decision was a victory for proponents of judicial review as a tool for ensuring the accountability of administrative actions:[22]
| “ | [T]he importance of this Supreme Court decision extends beyond environmental protection. It also contains an important defense of judicial review of decisions made by executive branch agencies—a critical step in holding those agencies accountable. Ultimately, this defense of judicial review may end up being the most important part of this ruling. … This is more than an esoteric question of administrative law—it’s an important victory for freedom and agency accountability. Nowadays, most government infringements of liberty occur as the result of unaccountable bureaucratic rule-making and adjudication by agencies. Perhaps the worst form of judicial deference, lamentably common in the lower federal courts, is the deference of not reviewing agency action at all.[22][18] | ” |
Dan Rohlf, an environmental law professor at Lewis & Clark Law School, observed in E&E News that the Weyerhaeuser decision may chill agencies’ exercise of their discretion:[23]
| “ | This is an indication that the Supreme Court was leaning more toward reviewability of agency decisionmaking. I could see this ruling, if not having precedent, either indicating a trend or having influence over future decisions. … Rulings like this, as a practical matter, can tend to make agencies more conflict-averse. So if an agency thinks it might be challenged, it may do things to try to avoid that challenge. To the extent that happens, I think it would be an unfortunate outcome of this decision.[23][18] | ” |
Roger Pilon, vice president for legal affairs at the Cato Institute, argued in Arizona’s Cronkite News that the Weyerhaeuser decision could protect property rights by strengthening judicial oversight of agency actions:[24]
| “ | This was an important decision for property rights and for judicial oversight of agency action. Not only was it not critical habitat, it wasn’t even habitat for the frog. It hadn’t lived there for over 50 years. … If that rationale were allowed to stand, then there is no parcel of land in the United States that could not, with sufficient improvement, be made habitable for virtually any species. It would put the whole of the United States under the jurisdiction of the Interior Department … which is absolutely absurd.[24][18] | ” |
See also
- Administrative Procedure Act
- Critical habitat
- Endangered Species Act
- National Environmental Policy Act
- Rulemaking
- Separation of powers
- Related Supreme Court cases:
External links
- Full text of the Fifth Circuit Court decision
- United States Court of Appeals for the 5th Circuit
- United States Supreme Court
- Search Google News for this topic
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 SCOTUSblog, "Weyerhaeuser Company v. United States Fish and Wildlife Service," accessed January 23, 2018
- ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 U.S. Supreme Court, "WEYERHAEUSER CO. v. UNITED STATES FISH AND WILDLIFE SERVICE ET AL." November 27, 2018
- ↑ 3.00 3.01 3.02 3.03 3.04 3.05 3.06 3.07 3.08 3.09 3.10 3.11 3.12 3.13 3.14 3.15 3.16 3.17 3.18 United States Court of Appeals for the 5th Circuit, "Weyerhaeuser Company v. United States Fish and Wildlife Service," accessed December 21, 2017
- ↑ 4.0 4.1 Wall Street Journal, "Supreme Court to Take Up Case of Dusky Gopher Frog," January 22, 2018
- ↑ 5.0 5.1 Washington Times, "'The Case of the Missing Frog,'" December 17, 2017
- ↑ Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," February 2017
- ↑ Blattmachr, J. (2006). Circular 230 Deskbook. New York, NY: Practising Law Institute. (pages 1-21)
- ↑ The Regulatory Group, "Regulatory Glossary," accessed August 4, 2017
- ↑ Electronic Privacy Information Center, "The Administrative Procedure Act (APA)," accessed August 14, 2017
- ↑ Environmental Protection Agency, "Summary of the Administrative Procedure Act," accessed August 14, 2017
- ↑ Center for Effective Government, "Arbitrary-or-Capricious Test," accessed August 15, 2017
- ↑ Legal Information Institute, "Judicial review," accessed December 11, 2018
- ↑ Duke Law Journal, "Judicial Review—Scope," accessed December 11, 2018
- ↑ Oyez, United States v. Morrison, accessed December 22, 2017
- ↑ FindLaw, GDF REALTY INVESTMENTS LTD II v. NORTON, accessed December 22, 2017
- ↑ Legal Information Institute, 42 U.S. Code § 4332 - Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts, accessed December 22, 2017
- ↑ OpenJurist, Nevada Land Action Association v. United States Forest Service, accessed December 22, 2017
- ↑ 18.0 18.1 18.2 18.3 18.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ SCOTUSblog, "Argument analysis: Justices jostle over endangered frog’s critical habitat," accessed October 2, 2018
- ↑ New York Times, "Supreme Court, in Harsh Spotlight, Returns to the Bench," accessed October 2, 2018
- ↑ Supreme Court of the United States, Weyerhaeuser Company v. United States Fish and Wildlife Service, argued October 1, 2018
- ↑ 22.0 22.1 The Hill, "In frog habitat ruling, justices rightly hold agencies accountable," December 3, 2018
- ↑ 23.0 23.1 E&E News, "The Supreme Court's latest ruling isn't just about a frog," December 3, 2018
- ↑ 24.0 24.1 Cronkite News, "Supreme Court limits ability to designate endangered species habitat," November 27, 2018
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