Page:Weyerhaeuser Company v. United States Fish and Wildlife Service, et al..pdf/10

Rh United States Fish and Wildlife Serv., 40 F. Supp. 3d 744 (ED La. 2014). The court determined that Unit 1 satisfied the statutory definition of unoccupied critical habitat, which requires only that the Service deem the land “essential for the conservation [of] the species.” Id., at 760.

Weyerhaeuser also challenged the Service’s decision not to exclude Unit 1 from the dusky gopher frog’s critical habitat, arguing that the Service had failed to adequately weigh the benefits of designating Unit 1 against the economic impact. In addition, Weyerhaeuser argued that the Service had used an unreasonable methodology for estimating economic impact and, regardless of methodology, had failed to consider several categories of costs. Id., at 759. The court approved the Service’s methodology and declined to consider Weyerhaeuser’s challenge to the decision not to exclude. See id., at 763–767, and n. 29.

The Fifth Circuit affirmed. 827 F. 3d 452. The Court of Appeals rejected the suggestion that the definition of critical habitat contains any “habitability requirement.” Id., at 468. The court also concluded that the Service’s decision not to exclude Unit 1 was committed to agency discretion by law and was therefore unreviewable. Id., at 473–475. Judge Owen dissented. She wrote that Unit 1 could not be “essential for the conservation of the species” because it lacked the open-canopy forest that the Service itself had determined was “essential to the conservation” of the frog. Id., at 480–481.

The Fifth Circuit denied rehearing en banc. Markle Interests, LLC v. United States Fish and Wildlife Serv., 848 F. 3d 635 (2017). Judge Jones dissented, joined by Judges Jolly, Smith, Clement, Owen, and Elrod. They reasoned that critical habitat must first be habitat, and Unit 1 in its present state could not be habitat for the dusky gopher frog. Id., at 641. The dissenting judges also concluded that the Service’s decision not to exclude Unit 1 was reviewable for abuse of discretion. Id., at 654, and