Amicus Curiae Brief — Weyerhaeuser Company, Petitioner v. United States Fish and Wildlife Service, et al.

No. 17-71

IN THE

Supreme Court of the United States

WEYERHAEUSER CO.,

v.

Petitioner,

U.S. FISH & WILDLIFE SERVICE, et al.,

Respondents.

On Writ of Certiorari to the

U.S. Court of Appeals

for the Fifth Circuit

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONER

Richard A. Samp

(Counsel of Record)

Cory L. Andrews

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

202-588-0302

rsamp@wlf.org

Date: April 30, 2018

QUESTIONS PRESENTED

Amici curiae address the second question only:

Whether an agency decision not to exclude an

area from critical habitat designation because of the

economic impact of designation is subject to judicial

review.

iii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I.

NOTHING IN THE ENDANGERED SPECIES

ACT OVERCOMES THE “STRONG

PRESUMPTION” THAT AGENCY ACTION IS

SUBJECT TO JUDICIAL REVIEW . . . . . . . . . . . 14

A.

The Fifth Circuit Misapplied the

“Committed to Agency Discretion”

Exception to Judicial Review and

Misinterpreted this Court’s

Heckler v. Cheney Decision . . . . . . . . 15

B.

The Second Sentence of Section

1533(b)(2) Is a Limitation on FWS

Authority, Not a Grant of

Unlimited Discretion . . . . . . . . . . . . . 20

C.

The Structure and History of the

ESA Demonstrate that Congress

Did Not Intend to Bar Judicial

Review . . . . . . . . . . . . . . . . . . . . . . . . 25

iv

D.

II.

The Fifth Circuit’s Interpretation

of Section 1533(b)(2) Conflicts with

this Court’s Decision in Bennett . . . . 28

JUDICIAL REVIEW IS PARTICULARLY

WARRANTED WHEN, AS HERE, FWS HAS

FAILED TO IDENTIFY ANY BENEFITS

DERIVED FROM A CRITICAL-HABITAT

DESIGNATION . . . . . . . . . . . . . . . . . . . . . . . . . 30

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

v

TABLE OF AUTHORITIES

Cases:

Page(s)

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995) . . . . . . . . 1

Bear Valley Mut. Water Co. v. Jewell,

790 F.3d 977 (9th Cir. 2015) . . . . . . . . . . . . . . . . 22

Bennett v. Spear,

520 U.S. 154 (1997) . . . . . . . . . . 1, 8, 10, 28, 29, 30

Bowen v. Michigan Academy of Family Physicians,

476 U.S. 667 (1986) . . . . . . . . . . . . . . . . . . . . . 2, 14

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . . . . . 19

Cuozzo Speed Technologies, LLC v. Lee,

136 S. Ct. 2131 (2016) . . . . . . . . . . . . . . . . . . 14, 16

Dickson v. Secretary of Defense,

68 F.3d 1396 (D.C. Cir. 1995) . . . . . . . . . . . . . . . 24

Heckler v. Cheney,

470 U.S. 821 (1985) . . . . . . . . . . . 10, 15, 17, 18, 19

Mach Mining, LLC v. EEOC,

135 S. Ct. 1645 (2015) . . . . . . . . . . . . . 9, 14, 15, 17

Michigan v. EPA,

135 S. Ct. 2699 (2015) . . . . . . . . . . . . . . . 12, 22, 34

Motor Vehicle Mfrs. Ass’n of United States,

Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 34

Murray Energy Corp. v. EPA,

No. 15-3751, pet. dism’d for lack of juris.,

(6th Cir., Feb. 28, 2018) . . . . . . . . . . . . . . . . . . . . . 1

Nat’l Assoc. of Home Builders v. Defs. of Wildlife,

551 U.S. 644 (2007) . . . . . . . . . . . . . . . . . . . . . . 1, 2

SAS Institute, Inc. v. Iancu,

__ U.S. __, 2018 WL 1913661 (April 24, 2018) . . 14

vi

Page(s)

TVA v. Hill,

437 U.S. 153 (1978) . . . . . . . . . . . . . . . . . . . . 25, 27

Utility Air Reg. Group v. EPA,

134 S. Ct. 2427 (2014) . . . . . . . . . . . . . . . . . . . . . . 1

Webster v. Doe,

486 U.S. 592 (1988) . . . . . . . . . . . . . . . . . . . . 16, 17

Statutes:

Administrative Procedure Act (APA) . . . . . . . 6, 8, 30

5 U.S.C. § 701(a)(2) . . . . . . . . . . . 7, 10, 15,, 16

18, 19, 24, 28, 30

5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . 14

5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . 6, 13, 34

Clean Air Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Clean Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Endangered Species Act (ESA),

16 U.S.C. § 1531 et seq. . . . . . . . . . . . . . . . . passim

16 U.S.C. § 1532(5)(C) . . . . . . . . . . . . . . . . . 26

16 U.S.C. § 1533(a)(3)(A) . . . . . . . . . . . . . . . . 3

16 U.S.C. § 1533(b)(2) . . . . . . . . . . . . . . passim

Endangered Species Act Amendments of 1978,

Pub. L. No. 95-632, 92 Stat. 3751 (1978) . . . . . . . 25

8 U.S.C. § 1158(b)(1)(A) . . . . . . . . . . . . . . . . . . . . . 23

8 U.S.C. § 1226(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 23

vii

Page(s)

35 U.S.C. § 314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

42 U.S.C. § 1988(b) . . . . . . . . . . . . . . . . . . . . . . . . . 23

50 U.S.C. § 403(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

50 C.F.R. § 424.19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Miscellaneous:

Committee on Environment & Public Works,

97th Congress, A Legislative History of the

Endangered Species Act of 1973, as Amended

in 1976, 1977, 1979, and 1980

(Cong. Res. Service eds., 1982) . . . . . . . . . . . . . . 26

Designation of Critical Habitat for Mississippi

Gopher Frog; Revised Proposed Rule,

76 Fed. Reg. 59774 (Sept. 27, 2011) . . . . . . . . . 4, 5

Revisions to the Regulations for Impact

Analyses of Critical Habitat, Final Rule,

78 Fed. Reg. 53058 (Aug. 28, 2013) . . . . . . . . . . . 13

Damien Schiff, Judicial Review Endangered:

Decisions Not to Exclude Areas from Critical

Habitat Should Be Reviewable under the APA,

47 Envtl. L. Rep. 10352 (2017) . . . . . . . . . . . . . . 26

viii

Page(s)

Amy Sinden, The Economics of Endangered

Species, Why Less is More in the Economic

Analysis of Critical Habitat Designations,

28 HARV. ENVTL. L. REV. 129 (2004) . . . . . . . . . . 27

Webster’s New Collegiate Dictionary,

(G & C. Merriam Co. 1981) . . . . . . . . . . . . . . . . . 21

124 Cong. Rec. H13579 (daily ed. Oct. 14, 1978)

(statement of Rep. Murphy) . . . . . . . . . . . . . . . . . 27

INTERESTS OF AMICI CURIAE

The Washington Legal Foundation (WLF) is a

nonprofit, public-interest law firm and policy center

with supporters in all 50 states.1 WLF devotes a

substantial portion of its resources to defending free

enterprise, individual rights, a limited and accountable

government, and the rule of law.

To that end, WLF has appeared before this

Court and other federal courts to urge adoption of

environmental policies that strike an appropriate

balance between environmental safety and economic

well-being. See, e.g. Murray Energy Corp. v. EPA, No.

15-3751, pet. dism’d for lack of jurisdiction (6th Cir.,

Feb. 28, 2018) (defining “Waters of the United States”

under Clean Water Act); Utility Air Reg. Group v. EPA,

134 S. Ct. 2427 (2014) (challenge to EPA’s Clean Air

Act “tailoring rule”).

In particular, WLF has

participated in virtually every major case that has

come before this Court regarding the scope of the

Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.

See, e.g., Nat’l Assoc. of Home Builders v. Defenders of

Wildlife, 551 U.S. 644 (2007); Bennett v. Spear, 520

U.S. 154 (1997); Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687 (1995).

The Allied Educational Foundation (AEF) is a

nonprofit charitable and educational foundation based

in Tenafly, New Jersey. Founded in 1964, AEF is

dedicated to promoting education in diverse areas of

1

Pursuant to Supreme Court Rule 37.6, amici curiae state

that no counsel for a party authored this brief in whole or in part;

and that no person or entity, other than amici and their counsel,

made a monetary contribution intended to fund the preparation or

submission of this brief. All parties have consented to the filing.

2

study, such as law and public policy, and has appeared

as amicus curiae in this Court on a number of

occasions, including in Nat’l Assoc. of Home Builders.

WLF and AEF also filed an amicus brief in support of

the certiorari petition in this case.

Amici agree with Petitioner that the ESA

prohibits designation of private land as unoccupied

critical habitat that is neither habitat nor essential to

species conservation. Amici write separately to focus

on the second question raised by Petitioner: whether

Congress intended to preclude all judicial review of

U.S. Fish and Wildlife Service (FWS) decisions not to

exclude areas from an ESA “critical habitat”

designation.

As Judge Edith Jones concluded in her dissent

from denial of rehearing en banc (joined by five other

Fifth Circuit judges), the panel’s holding that FWS noexclusion decisions are not subject to judicial review

“play[s] havoc with administrative law.” Pet. App.

156a. Amici are concerned that if that holding is

allowed to stand, it will provide federal agencies with

unilateral power to make a broad array of regulatory

decisions, unchecked by any possibility of judicial

review. Amici do not believe that the decision below is

consistent with this Court’s repeated and longstanding

application of a “strong presumption” favoring judicial

review of administrative action. Bowen v. Michigan

Academy of Family Physicians, 476 U.S. 667, 670

(1986).

3

STATEMENT OF THE CASE

Once a plant or animal species has been listed as

“endangered,” the Endangered Species Act generally

requires FWS (or, in appropriate cases, the National

Oceanic and Atmospheric Administration) to designate

“critical habitat” for the species.

16 U.S.C.

§ 1533(a)(3)(A). Such designations are to be made “in

accordance with” criteria set out in § 1533(b). Ibid.

Section 1533(b)(2) states that FWS “shall

designate critical habitat, and make revisions thereto

... on the basis of the best scientific data available and

after taking into consideration the economic impact,

the impact on national security, and any other relevant

impact, of specifying any particular area as critical

habitat.” (Emphasis added.)

Section 1533(b)(2)

includes a second sentence that provides additional

details regarding how FWS is to exercise its

designation authority:

The Secretary may exclude any area from

critical habitat if he determines that the

benefits of such exclusion outweigh the

benefits of specifying such areas as part

of the critical habitat, unless he

determines, based on the best scientific

and commercial data available, that the

failure to designate such areas as critical

habitat will result in the extinction of the

species concerned.

In 2001, FWS listed the Mississippi gopher frog

(a species of frog currently found only in Mississippi) as

4

an endangered species.2 In 2011, FWS published a

proposed rule that would have designated certain areas

in Mississippi (but not elsewhere) as critical habitat for

the species. Pet. App. 86a. In response to peer-review

comments that the designated areas were insufficient

for conservation of the species, FWS amended the

proposed rule to include an area in Louisiana (referred

to as “Unit 1”) within the designation. Id. at 87a.

The amended proposed rule noted that FWS had

prepared a draft economic analysis (DEA) of the

economic impact of its proposed designation.

Designation of Critical Habitat for Mississippi Gopher

Frog; Revised Proposed Rule, 76 Fed. Reg. 59774,

59789 (Sept. 27, 2011). The DEA concluded that the

designation of Unit 1 as critical habitat could decrease

the value of that property by as much as $36.3 million.

Id. at 59790. However, the amended proposed rule did

not suggest that FWS had taken those costs into

account in connection with its proposal to designate

Unit 1. To the contrary, FWS stated that it selected

sites for designation based on its determination that

they were “considered essential for the conservation of

the species.” Id. at 59781. Having selected its

proposed sites without considering economic impacts,

FWS explained that before issuing a final rule it would

consider all of the criteria set out in § 1533(b)(2) in

determining whether to exclude any of the proposed

sites:

2

FWS renamed the species the “dusky gopher frog” in

2012, soon after it first proposed the designation of areas outside

of Mississippi as “critical habitat” for the species.

5

In considering whether to exclude a

particular area from the designation, we

identify the benefits of including the area

in the designation, identify the benefits of

excluding the area from the designation,

and evaluate whether the benefits of

exclusion outweigh the benefits of

inclusion. If the analysis indicates that

the benefits of exclusion outweigh the

benefits of inclusion, the Secretary may

exercise his discretion to exclude the area

only if such exclusion would not result in

extinction of the species.

Id. at 59789. In other words, FWS reserved the right

to adhere to its proposal to designate Unit 1 as critical

habitat even if it ultimately determined that the

benefits of non-designation outweighed the benefits of

designation. FWS added, without further explanation,

“We have not proposed to exclude any areas from

critical habitat.” Ibid.3

In its 2012 final rule, FWS continued to include

Unit 1 (consisting of 1,544 acres of forested land not

3

The procedure employed by FWS in making its critical

habitat designation—a two-step process involving a preliminary

listing of potential site designations based solely on scientific

criteria, followed by an evaluation based on all of the selection

criteria (including economic impact) mandated by 16 U.S.C.

§ 1533(b)(2)—was and is consistent with FWS regulations. See 50

C.F.R. § 424.19. However, that two-step procedure is not provided

for in § 1533(b)(2) itself. The statute simply requires FWS to take

all of the listed criteria into account when considering sites for

designation, without specifying the order in which the criteria are

to be examined.

6

currently occupied by the dusky gopher frog) in the

area designated as critical habitat. JA99-JA199.

Petitioner Weyerhaeuser Co. owns a portion of the land

included in Unit 1 and leases the remainder. It (along

with other landowners) filed suit in district court in

2013, challenging the “critical habitat” designation.

Among their claims: FWS’s designation was arbitrary,

capricious, and an abuse of discretion—in violation of

the Administrative Procedure Act (APA), 5 U.S.C.

§ 706(2)(A)—because FWS failed to exclude Unit 1 from

the designation, even though the costs of inclusion

vastly exceeded the benefits (if any) of inclusion.

The district court granted FWS’s motion for

summary judgment and dismissed the complaint. Pet.

App. 78a-122a.

The court conceded that the

landowners’ challenge to FWS’s economic analysis was

their “most compelling issue,” and it labeled “most

troubling” FWS’s “conclusion that the economic

impacts on Unit 1 are not disproportionate.” Id. at

113a-114a. It ultimately concluded, however, that the

ESA required it to defer to FWS’s decision to include

Unit 1 within the critical habitat designation. Id. at

118a.

A divided Fifth Circuit panel affirmed. Pet. App.

1a-77a. The panel majority devoted most of its opinion

to explaining its conclusion that FWS acted reasonably

in determining that: (1) designating occupied habitat

alone would be inadequate to ensure the conservation

of the dusky gopher frog; and (2) Unit 1 is essential for

the conservation of the frog. Id. at 15a-32a. It then

declined to review Weyerhaeuser’s claim that Unit 1

should have been excluded from the critical-habitat

designation on the basis of the designation’s economic

7

costs. Id. at 32a-36a. It concluded that FWS decisions

not to exclude areas from such designation are

“decisions ‘committed to agency discretion by law’” and

thus “are not reviewable in federal court.” Id. at 33a

(quoting 5 U.S.C. § 701(a)(2)).

To support its

conclusion that Congress intended to preclude judicial

review of FWS decisions not to exclude areas on the

basis of economic considerations, the panel cited the

word “may” in the second sentence of 16 U.S.C.

§ 1533(b)(2). Ibid.4

Judge Owen dissented. Pet. App. 48a-77a. She

concluded that the ESA precluded inclusion of Unit 1

in the critical-habitat designation because: (1) the

area’s “biological and physical characteristics will not

support a dusky gopher frog population”; and (2) there

is no evidence that it will become “essential” to the

conservation of the species because “there is no

evidence that the substantial alterations and

maintenance necessary to transform the area into

habitat suitable for the endangered species will, or are

likely to, occur.” Id. at 48a. In light of her conclusion,

Judge Owen did not address the majority’s holding that

FWS’s no-exclusion determination was not subject to

judicial review.

In February 2017, the Fifth Circuit voted 8-6 to

deny Weyerhaeuser’s petition for rehearing en banc.

Pet. App. 124a. Judge Jones issued an opinion (joined

by five other judges) dissenting from the denial. Id. at

4

The cited sentence states, in part, that FWS “may

exclude any area from critical habitat if [it] determines that the

benefits of such exclusion outweigh the benefits of specifying such

area as part of the critical habitat.” § 1533(b)(2) (emphasis added).

8

124a-162a.

Among the reasons cited by Judge Jones for

granting rehearing was her conclusion that “[t]he panel

majority play havoc with administrative law by

declaring the Service’s decision not to exclude Unit 1

non-judicially reviewable.” Id. at 156a. She faulted

the panel for “never recognizing or applying” the

“strong presumption favoring judicial review of

administrative action,” a presumption that “is not

easily overcome.” Id. at 160a. She argued that the

panel decision directly conflicts with this Court’s

decision in Bennett v. Spear, that FWS must take

economic considerations into account in making critical

habitat decisions, and that “its ultimate decision

regarding designation of critical habitat is reviewable

for abuse of discretion.” Id. at 161a (citing Bennett, 520

U.S. at 172). She concluded, “The panel majority’s

refusal to conduct judicial review is insupportable and

an abdication of our responsibility to oversee, according

to the APA, agency action.” Id. at 162a.

SUMMARY OF ARGUMENT

If the Court decides the first Question Presented

in Weyerhaeuser’s favor—and holds that Unit 1 was

not properly designated as critical habitat because it is

neither habitat nor essential to species

conservation—the Court could overturn the FWS’s

critical-habitat rule without ever reaching the second

Question Presented. Amici curiae nonetheless urge the

Court to address the second question regardless how it

rules on the first question. Whether FWS decisions not

to exclude land from a critical-habitat designation are

subject to judicial review is an issue that arises

9

frequently in the lower courts, and they would benefit

greatly from this Court’s guidance.

The Fifth Circuit’s determination that Congress

intended to preclude all review of FWS no-exclusion

decisions conflicts sharply with this Court’s case law,

which creates a strong presumption of judicial review

of administrative action. The Fifth Circuit held that

Congress barred courts from reviewing an FWS

determination to proceed with a “critical habitat”

designation in the face of landowner objections that

designation would impose unwarranted economic costs.

Pet. App. 32a-36a. Any such congressional edict would

represent an extraordinary departure from how

Congress is normally presumed to legislate. That is so

because “[a]bsent [judicial] review, [an agency’s]

compliance with the law would rest in the [agency’s]

hands alone.” Mach Mining, LLC v. EEOC, 135 S Ct.

1645, 1652 (2015). The Court explained:

We need only know—and know that

Congress knows—that legal lapses and

violations occur, and especially so when

they have no consequence. That is why

this Court has so long applied a strong

presumption favoring judicial review of

administrative action.

Id. at 1652-53.

In holding that the ESA barred judicial review

of FWS critical-habitat designations, the Fifth Circuit

relied on Congress’s use of the word “may” rather than

“shall” in the second sentence of § 1533(b)(2). That

single word cannot possibly bear the weight imposed on

10

it by FWS and the Fifth Circuit—particularly because

the previous sentence in § 1533(b)(2) states that FWS,

when making critical-habitat determinations, “shall”

take into consideration “the economic impact ... of

specifying any particular area as critical habitat.”

There could have been only one purpose in requiring

consideration of economic impact: to prevent an area

from being designated as critical habitat when the

costs of doing so significantly outweigh the benefits.

FWS may be entitled to leeway in how it goes

about weighing costs and benefits. But nothing in the

ESA suggests that courts are precluded from reviewing

FWS’s ultimate determination under an abuse-ofdiscretion standard. Indeed, the Court in Bennett

explicitly held that ESA critical-habitat designations

were subject to judicial review based on claims that

FWS failed to properly consider the “economic impact”

of the designations. Bennett, 520 U.S. at 172. The

decision below cannot be squared with Bennett, and the

United States’s brief opposing certiorari did not

contend otherwise.

In concluding that FWS no-exclusion

determinations are “committed to agency discretion by

law,” 5 U.S.C. § 701(a)(2), the Fifth Circuit relied on

this Court’s decision in Heckler v. Cheney, 470 U.S. 821

(1985). Pet. App. 33a. That reliance was misplaced.

Heckler held that, in general, the decision by a federal

enforcement agency not to bring an enforcement action

is not subject to judicial review, primarily because “an

agency decision not to enforce often involves a

complicated balancing of a number of factors which are

peculiarly within its expertise.” 470 U.S. at 831. The

Fifth Circuit sought to analogize FWS’s decision not to

11

exclude a particular area from critical habitat to an

agency’s decision not to bring an enforcement action.

That analogy makes little sense. Any FWS decision not

to exclude a particular area from critical habitat is, by

definition, a decision to include the area in the

designation—thereby subjecting the area to

burdensome government regulation.

Nor can FWS realistically argue that a reviewing

court would have no meaningful standard against

which to judge FWS’s exercise of discretion—many of

those standards are set forth in the text of § 1533(b)(2).

Indeed, the Service readily concedes that point when

the shoe is on the other foot. When an environmental

group objects to an FWS decision to exclude a

particular area from a critical-habitat designation

based on a determination that “the benefits of such

exclusion outweigh the benefits of specifying such area

as part of the critical habitat,” 15 U.S.C. § 1533(b)(2),

the agency decision is subject to review under an

abuse-of-discretion standard. If a reviewing court has

meaningful standards against which to judge an FWS

decision to exclude a particular area based on a costbenefit analysis, then it likewise has meaningful

standards against which to judge an FWS no-exclusion

decision.

The Fifth Circuit’s decision to bar judicial review

is particularly troubling because the evidence

overwhelmingly supports Petitioners’ contention that

FWS was unable to identify any benefits of Unit 1

critical-habitat designation that would offset the

admittedly severe economic burdens imposed on

12

landowners by that designation.5 FWS’s April 6, 2012

“Economic Analysis” did not identify any benefits,

other than that land-use restrictions imposed as a

result of the designation might preserve open space

and thereby “increase adjacent or nearby property

values.” JA98. That “benefit” does not, of course, do

anything to assist the dusky gopher frog or any other

endangered species for whose benefit Congress adopted

the ESA.

Given § 1533(b)(2)’s mandate that FWS consider

economic impact when designating critical habitat, at

some point the imbalance between costs and benefits

becomes so great that the only rational decision is to

exclude the area in question. As the Court recently

explained, “One would not say that it is even rational,

never mind ‘appropriate,’ to impose billions of dollars

in economic costs in return for a few dollars in health

or environmental benefits.” Michigan v. EPA, 135 S.

Ct. 2699, 2707 (2015). Yet the Fifth Circuit’s ruling

bars courts from ever reviewing FWS’s cost-benefit

determinations, no matter how irrational.

The Court should go beyond simply reversing the

Fifth Circuit’s ruling that FWS’s no-exclusion

determination is not subject to judicial review. It

should also hold that FWS’s designation of Unit 1 as

5

It is difficult to imagine how the designation could be of

any benefit to the dusky gopher frog, given that the frog cannot be

introduced into Unit 1 without the permission of landowners

(permission they have said they will not grant) and given that (as

FWS concedes) Unit 1 is not currently habitable for the dusky

gopher frog and could not become habitable unless landowners

agreed to substantial alterations of the property.

13

critical habitat was arbitrary, capricious, and an abuse

of discretion, in violation of 5 U.S.C. § 706(2)(A). FWS

issued its 2012 final rule while operating under the

mistaken belief that § 1533(b)(2) merely requires it to

investigate economic impact and that it possesses

unreviewable discretion to designate an area as critical

habitat no matter how much the costs of doing so

exceed the benefits. See, e.g., Revisions to the

Regulations for Impact Analyses of Critical Habitat,

Final Rule, 78 Fed. Reg. 53058, 53063 (Aug. 28, 2013).

Moreover, the final rule designating Unit 1 as critical

habitat, after concluding that designation could cost

landowners as much as $34 million, JA189, confined its

analysis of costs-versus-benefits to a single sentence:

“Our economic analysis did not identify any

disproportionate costs that are likely to result from the

designation.” JA 190. That single sentence cannot be

deemed reasoned administrative decision-making of

the sort demanded by the APA. The Court should

vacate the final rule as arbitrary, capricious, and an

abuse of discretion. Alternatively, the Court should

remand the case to the Fifth Circuit with directions for

the appeals court to consider in the first instance

whether FWS’s designation of Unit 1 as critical habitat

complied with the APA.

14

ARGUMENT

I.

NOTHING IN THE ENDANGERED SPECIES ACT

OVERCOMES THE “STRONG PRESUMPTION”

THAT AGENCY ACTION IS SUBJECT TO JUDICIAL

REVIEW

Subject to very limited exceptions, the APA

authorizes judicial review of “final agency action for

which there is no other adequate remedy in a court.”

5 U.S.C. § 704. The Court has long recognized a

“strong presumption” that the actions of federal

agencies are subject to judicial review. Bowen, 476

U.S. at 670. As the Court recently explained:

Congress rarely intends to prevent courts

from enforcing its directives to federal

agencies. For that reason, this Court

applies a “strong presumption” favoring

judicial review of administrative action.

Mach Mining, 135 S. Ct. at 1651 (citations omitted).

“To overcome that presumption,” the Court

“require[s] ‘clear and convincing indications’ that

Congress meant to foreclose review.” SAS Institute,

Inc. v. Iancu, ___ U.S. ___, 2018 WL 1914661 at *9

(April 24, 2018) (quoting Cuozzo Speed Technologies,

LLC v. Lee, 136 S. Ct. 2131, 2140 (2016)). When

attempting to discern such indications, the Court looks

to “specific language, specific legislative history, and

inferences of intent drawn from the statute as a

whole.” Cuozzo, 136 S. Ct. at 2140 (citations omitted).

None of those sources contain evidence (let alone

15

“clear and convincing” evidence) that Congress

intended to foreclose review of an FWS decision to

designate an area as critical habitat (or, as FWS

prefers to phrase the issue, a decision not to exclude an

area from a critical-habitat designation). In the

absence of such evidence, the Fifth Circuit’s decision to

deny judicial review must be reversed.

A.

The Fifth Circuit Misapplied the

“Committed to Agency Discretion”

Exception to Judicial Review and

Misinterpreted this Court’s Heckler

v. Cheney Decision

The Fifth Circuit did not contend that any

provision of the ESA explicitly precludes judicial

review of an agency decision to designate ESA critical

habitat. Rather, the appeals court based its nojudicial-review determination on 5 U.S.C. § 701(a)(2),

which bars review when “agency action is committed to

agency discretion by law.” Pet. App. 33a. It concluded

that Congress precluded review in this instance

because there are “no meaningful standards against

which to judge the agency’s exercise of discretion.” Ibid

(quoting Heckler, 470 U.S. at 830).

The appeals court premised its invocation of

§ 701(a)(2) on a misunderstanding of that statute.

Amici note initially that the panel neither recognized

nor applied the strong presumption favoring judicial

review. Proper application of the presumption requires

a court to interpret arguably ambiguous statutes as not

providing agencies with unreviewable discretion. An

agency claiming that its actions are unreviewable

“bears a heavy burden in attempting to show that

16

Congress prohibited all judicial review.” Mach Mining,

135 S. Ct. at 1651. Yet the decision below includes no

indication that the panel imposed any evidentiary

burden on FWS or even considered interpreting

statutory ambiguities in favor of permitting judicial

review.

Consideration of a government claim that

judicial review is barred under § 701(a)(2) “requires

careful examination of the statute on which the claim

of agency illegality is based.” Webster v. Doe, 486 U.S.

592, 600 (1988). In this case, the relevant statute is 16

U.S.C. § 1533(b)(2).

That statute includes no

indications of review-preclusive intent of the sort

included in statutes relied on by the Court in the very

few instances in which it has barred judicial review

under § 701(a)(2).

For example, in Webster the Court held that

§ 701(a)(2) barred review of an APA claim that the CIA

terminated an employee in violation of his statutory

rights, citing a statute that empowered the CIA

director in his discretion to “terminate the employment

of any officer or employee of the Agency whenever he

shall deem such termination necessary or advisable in

the interests of the United States.” 50 U.S.C. § 403(c)

(1988) (emphasis added).6 In Cuozzo, the Court barred

6

The Court concluded that the language of § 403(c) “fairly

exudes deference to the Director, and appears to us to foreclose the

application of any meaningful judicial standard of review.”

Webster, 486 U.S. at 600. The Court nonetheless held that the

language was insufficiently clear to demonstrate that Congress

intended to preclude judicial “consideration of colorable

constitutional claims” arising out of the discharge. Id. at 603.

17

judicial review of a Patent Office decision to initiate

agency review of a patent, invoking 35 U.S.C. § 314(d),

which states that “[t]he determination of the Director

[of the Patent Office] whether to initiate an inter partes

review under this section shall be final and

nonappealable.” 136 S. Ct. at 2139-42.

Section 1533(b)(2) contains no comparable

language. That provision cannot be characterized as

“exud[ing] deference” to FWS decisions regarding

critical-habitat designations. To the contrary, it

affirmatively mandates that the agency “shall” base

such decisions on specified factors, including “the

economic impact” of any designation. Nothing in the

statute supports a finding that FWS has overcome the

“strong presumption” of reviewability and has met its

“heavy burden” of demonstrating a congressional intent

to “prohibit[ ] all judicial review” of decisions to

designate an area as critical habitat. Mach Mining,

135 S. Ct. at 1651.

In holding that Congress intended to preclude

judicial review of FWS’s designation of Unit 1 as

critical habitat for the dusky gopher frog, the Fifth

Circuit relied heavily on this Court’s Heckler decision.

That reliance was wholly misplaced.

Properly

understood, Heckler directly conflicts with the decision

below. Heckler was premised on the understanding

that Congress rarely provides guidelines for reviewing

the propriety of an agency’s decision not to initiate an

enforcement action. For that reason, Heckler stated,

“the presumption is that judicial review is not

available” for a decision not to initiate enforcement

action. 470 U.S. at 831 (emphasis added). The Court

explained:

18

This Court has recognized on several

occasions over many years that an

agency’s decision not to prosecute or

enforce, whether through civil or criminal

process, is a decision generally committed

to an agency’s absolute discretion. ... The

reasons for this general unsuitability [for

judicial review of agency decisions to

refuse enforcement] are many. First, an

agency decision not to enforce often

involves a complicated balancing of a

number of factors which are peculiarly

within its expertise.

Ibid.7

The Fifth Circuit sought to analogize FWS’s

decision not to exclude a particular area from critical

habitat to Heckler’s analysis of an agency’s decision not

to bring an enforcement action. Pet. App. 33a. That

analogy makes little sense. Any FWS decision not to

exclude a particular area from critical habitat is, by

definition, a decision to include the area in the

designation—thereby subjecting the area to

burdensome government regulation.

As Heckler

explained, an agency’s decision not to initiate an

enforcement action does not pose the same threat to

liberty or property interests that can arise from the

opposite decision and thus presents a less compelling

7

Heckler held that § 701(a)(2) precluded judicial review of

prison inmates’ suit to compel the Food and Drug Administration

to take enforcement action against several States’ use of lethalinjection drugs that had not been approved by FDA as “safe and

effective” for human use. Id. at 837-38.

19

case for judicial intervention:

[W]hen an agency refuses to act it

generally does not exercise its coercive

power over an individual’s liberty or

property rights, and thus does not

infringe upon areas that courts are often

called upon to protect. Similarly, when

an agency does act to enforce, that action

itself provides a focus for judicial review,

inasmuch as the agency must have

exercised its power in some manner.

Heckler, 470 U.S. at 832 (emphasis in original).

Section 1533(b)(2) sets forth a list a factors

(including “economic impact”) that FWS must take into

account when designating critical habitat. Accordingly,

the Fifth Circuit’s conclusion that § 1533(b)(2) provides

“no meaningful standard against which to judge

[FWS’s] exercise of discretion” in designating critical

habitat, ibid, is implausible and conflicts sharply with

Heckler and other decisions of this Court regarding the

meaning of § 701(a)(2). See, e.g., Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 410 (1971)

(stating that § 701(a)(2) “is a very narrow exception” to

APA review and “is applicable in those rare instances

where statutes are drawn in such broad terms that in

a given case there is no law to apply”) (citations

omitted).

20

B.

The Second Sentence of Section

1533(b)(2) Is a Limitation on FWS

Authority, Not a Grant of Unlimited

Discretion

The Fifth Circuit reached its not-reviewable

decision by improperly focusing almost exclusively on

the second sentence of § 1533(b)(2) to the exclusion of

the first sentence. The first sentence includes a

laundry list of factors (including “economic impact”)

that FWS “shall” “tak[e] into consideration” when

determining what areas to designate as critical habitat.

The second sentence states:

The Secretary may exclude any area from

critical habitat if he determines that the

benefits of such exclusion outweigh the

benefits of specifying such area as part of

the critical habitat, unless he determines,

based on the best scientific and

commercial data available, that the

failure to designate such area as critical

habitat will result in extinction of the

species concerned.

Relying on the second sentence, the Fifth Circuit

held (in agreement with FWS) that “once [FWS] has

fulfilled its statutory obligation to consider economic

impacts, a decision to not exclude an area is

discretionary and thus not reviewable in court.” Pet.

App. 33a. That holding is a wholly implausible

interpretation of § 1533(b)(2) because it essentially

ignores the mandatory language of the provision’s first

sentence.

21

The first sentence of § 1533(b)(2) requires any

critical-habitat designation to be made only “after

taking into consideration the economic impact ... of

specifying any particular area as critical habitat.”

(Emphasis added.)

Because any critical-habitat

designation must “tak[e] into consideration” economic

impact, it cannot be true (as the Fifth Circuit held) that

a decision to designate an area (or, as the Fifth Circuit

phrased it, a decision not to exclude the area from

designation) is left totally up to FWS’s unreviewable

discretion regardless of the extent of the economic

impact.

The Fifth Circuit’s interpretation of the statute

might be plausible if FWS’s § 1533(b)(2) obligation to

“tak[e] into consideration the economic impact” of

critical-habitat designations could be satisfied by

completing an economic-impact study and then

immediately discarding it.8 But that is not a plausible

interpretation of the word “consideration.” See, e.g.,

Webster’s New Collegiate Dictionary (G. & C. Merriam

Co. 1981) (“consideration” defined as “something

considered as a ground: REASON” or “a taking into

account”). The requirement that FWS must take

economic impact into consideration before designating

any area as critical habitat requires that consideration

of that economic impact must play some role in the

designation decision. The use of the word “may” in the

second sentence of § 1533(b)(2) (“the Secretary may

8

Indeed, the Fifth Circuit explicitly adopted that very

narrow interpretation of the phrase “taking into consideration.”

See Pet. App. 36a (stating that FWS “fulfilled this [‘taking into

consideration’] requirement by commissioning an economic report

by Industrial Economics, Inc.”).

22

exclude any area from critical habitat” based on

economic considerations) suggests that FWS is entitled

to leeway in how it goes about weighing costs and

benefits. But nothing in the ESA suggests that courts

are precluded from reviewing FWS’s ultimate

determination under an abuse-of-discretion standard.

Section 1533(b)(2) does not provide precise

standards by which courts can review the cost-benefit

evaluations mandated by the statute. But at some

point the imbalance between costs and benefits

becomes so great that the only rational decision is to

exclude the area in question. As the Court recently

explained, “One would not say that it is even rational,

never mind ‘appropriate,’ to impose billions of dollars

in economic costs in return for a few dollars in health

or environmental benefits.” Michigan v. EPA, 135 S.

Ct. 2699, 2707 (2015). Yet the Fifth Circuit’s ruling

bars courts from ever reviewing FWS’s cost-benefit

determinations, no matter how irrational.9

The Fifth Circuit focused on § 1533(b)(2)’s

9

The lower courts are unanimous in concluding that an

FWS decision not to designate an area as critical habitat is subject

to APA review when the decision is based on economic

considerations. See, e.g., Bear Mountain Mut. Water Co. v. Jewell,

790 F.3d 977, 989 (9th Cir. 2015). Both the Government and the

Fifth Circuit are in apparent agreement with that case law. See,

e.g., FWS 9th Cir. Br. 40; Pet. App. 35a. That position is

inconsistent with their position in this case. If the ESA provides

sufficient meaningful standards against which to judge FWS’s

exercise of discretion in excluding an area from a critical-habitat

designation for cost-benefit reasons, then logically there also must

be sufficient standards by which a court could judge FWS’s

decision to include the same area.

23

second sentence as the basis for its holding that FWS

possesses unreviewable discretion to designate an area

as critical habitat without regard to the economic

impact of that designation. But properly understood,

the second sentence serves to restrict FWS’s discretion,

not to broaden it. Its operative language prohibits

FWS from relying on economic considerations as a

basis for excluding an area from critical habitat, if

exclusion “will result in the extinction of the species

concerned.” The first sentence of § 1533(b)(2)—by

requiring FWS to take economic impact into

consideration in all its designation decisions—already

makes clear that the agency is authorized to exclude

areas based on cost-benefit considerations. The second

sentence’s primary function is to place an “extinction”

limitation on that authority.

The appeals court relied on the word “may” in

the second sentence of § 1533(b)(2) (“The Secretary

may exclude an area from critical habitat ...”) as its

principal basis for holding that an FWS decision not to

exclude an area from critical habitat is not judicially

reviewable. Pet. App. 33a-35a. That reliance is

misplaced. Scores of federal statutes use the word

“may” in authorizing federal officials to undertake

certain actions.10 Yet amici have located no federal

10

See, e.g., 8 U.S.C. § 1158(b)(1)(A) (immigration officials

“may grant asylum to an alien who has applied for asylum in

accordance with” procedures established by those officials); 8

U.S.C. § 1226(a)(2) (if an alien has been detained pending

completion of removal proceedings, the Attorney General “may

release the alien on bond”); 42 U.S.C. § 1988(b) (in a suit alleging

violations of specified civil rights statutes, “the court, in its

discretion, may allow the prevailing party, other than the United

24

appellate decisions citing use of the word “may” in a

federal statute as the basis for concluding that 5 U.S.C.

§ 701(a)(2) precludes judicial review of a decision to act

affirmatively in a manner contrary to the manner

authorized by the statute—with the single exception of

cases interpreting 16 U.S.C. § 1533(b)(2). To the

contrary, courts routinely hear challenges raising

claims under such statutes without questioning their

authority to do so. Moreover, when the reviewability

issue is raised, courts have uniformly rejected

Government assertions that a statute’s use of the word

“may” indicates that agency action is not judicially

reviewable. In rejecting one such challenge, the D.C.

Circuit stated:

When a statute uses a permissive term

such as “may” rather than a mandatory

term such as “shall,” this choice of

language suggests that Congress intends

to confer some discretion on the agency,

and that courts should accordingly show

deference to the agency’s determination.

However. such language does not mean

the matter is committed exclusively to

agency discretion.

Dickson v. Secretary of Defense, 68 F.3d 1396, 1401

(D.C. Cir. 1995) (emphasis in original).

States, a reasonable attorney’s fee”).

25

C.

The Structure and History of the ESA

Demonstrate that Congress Did Not

Intend to Bar Judicial Review

The Endangered Species Act’s structure and

history both reinforce the conclusion that Congress did

not intend to foreclose judicial review of claims that

FWS improperly designated areas as critical habitat

for an endangered species.

Congress added 16 U.S.C. § 1533(b)(2) to the

ESA in 1978. The new provision, which for the first

time required consideration of “economic impact” and

the weighing of costs versus benefits in critical-habitat

determinations, was enacted as part of the ESA

Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 3751

(1978). That statute was adopted in response to the

Court’s decision in TVA v. Hill, 437 U.S. 153 (1978).

TVA upheld an ESA injunction against completion of

the almost-finished Tellico Dam because (some feared)

it might eradicate an endangered fish, the snail

darter—even though abandonment of the dam would

have huge economic consequences.

The TVA decision led to a firestorm of

congressional criticism, with many Members stating

that the ESA had never been intended to restrict land

use without regard to whether the cost of those

restrictions greatly outweighed their benefits. For

example, Senator Jake Garn, a leading proponent of

amending the ESA, complained that TVA had held that

Congress intended “to provide endangered or

threatened wildlife and plants the highest possible

degree of protection from Federal actions” and thus

decreed that “[a]ll other national goals ... must fall in

26

the face of a threat to an endangered species.”

Committee on Environment & Public Works, 97th

Congress, A Legislative History of the Endangered

Species Act of 1973, as Amended in 1976, 1977, 1979,

and 1980 (Cong. Res. Service eds., 1982) at 1102.

Senator Garn charged that “[t]hat interpretation is ...

patent nonsense, and it is not the interpretation put

upon the act by the Congress in passing it.” Ibid. See

Damien Schiff, Judicial Review Endangered: Decisions

Not to Exclude Areas from Critical Habitat Should Be

Reviewable under the APA, 47 Envtl. L. Rep. 10352,

10354-55 (2017).

Regulations adopted by the Department of

Interior prior to 1978 had very broadly defined the

characteristic of “critical habitat” for an endangered or

threatened species. Section 2 of the 1978 amendments

adopted a more restrictive definition. In particular, the

amendment clarified—in a provision now codified at 16

U.S.C. § 1532(5)(C)—that as a general rule, a species’s

designated “critical habitat” should not include the

entirety of the area in which the species might thrive:

“critical habitat shall not include the entire

geographical area which can be occupied by the

threatened or endangered species.”

The 1978

amendments also adopted a provision—codified at 16

U.S.C. § 1533(b)(2) and discussed at length

above—that established the criteria for determining

which of the areas in which the species might thrive

should be designated as critical habitat.

Citing these provisions, legal commentators have

universally understood the ESA Amendments of 1978

as an attempt by Congress to reverse the perceived

excesses of TVA v. Hill and to ensure that federal

27

agencies did not make critical-habitat designations

until after considering all likely economic

consequences, including possible creation of obstacles

to land development. See, e.g., Amy Sinden, The

Economics of Endangered Species, Why Less is More in

the Economic Analysis of Critical Habitat Designations,

28 HARV. ENVTL. L. REV. 129, 148 (2004). As Rep. John

Murphy, a principal sponsor of the amendments

explained:

The Conference Report includes the

House provision mandating the Secretary

to consider the economic impact of

designating critical habitat for any

species. The Secretary is authorized to

alter the critical habitat designation

based on this economic evaluation. This

provision is the most significant provision

in the entire bill.

124 Cong. Rec. H13579 (daily ed. Oct. 14, 1978)

(statement of Rep. Murphy) (emphasis added).

The Fifth Circuit held that Congress, when it

mandated that FWS take economic impact into

consideration in connection with critical-habitat

designations, simultaneously precluded courts from

reviewing an FWS decision to include a disputed area

within that designation—no matter how economically

irrational the decision might be. That holding cannot

be squared with the structure and history of the 1978

ESA Amendments. Given the amendments’ widely

understood purposes—to legislatively overrule TVA v.

Hill and to ensure that the goal of preserving

endangered species would no longer be pursued to the

28

exclusion of other goals such as economic

development—the strong presumption in favor of

judicial reviewability has not been overcome. A

Congress intent on reining in environmental excesses

would have had no reason to grant FWS free rein to act

as it pleased.

D.

The Fifth Circuit’s Interpretation of

Section 1533(b)(2) Conflicts with this

Court’s Decision in Bennett

In concluding that 5 U.S.C. § 701(a)(2) bars

judicial review of FWS’s no-exclusion decision, the

Fifth Circuit made no mention of this Court’s decision

in Bennett v. Spears. Pet. App. 32a-36a. Yet Bennett

addressed this precise issue and concluded that FWS

economic-impact decisions were judicially reviewable

under the APA.

Indeed, Judge Jones’s dissent from denial of

Fifth Circuit rehearing en banc highlighted the clear

conflict between Bennett and the panel decision. Pet.

App. 160a-161a. Neither the panel nor the judges

voting to deny rehearing challenged her conclusion that

Bennett’s holding authorizes judicial review under the

circumstances of this case. In his brief opposing the

certiorari petition, the Solicitor General did not dispute

that the decision below conflicts with Bennett. Opp. Br.

30. The Solicitor General argued that review was

unwarranted, characterizing Bennett’s statements

regarding the availability of judicial review as “passing

dictum.” Ibid. But the brief neither challenged the

accuracy of those statements nor stated that later

Court decisions called into question their continued

viability.

29

At issue in Bennett was an FWS Biological

Opinion that concluded: (1) long-term operation of the

Klamath Irrigation Project was likely to jeopardize two

endangered species of fish; and (2) a reasonable and

prudent measure to avoid that jeopardy was to require

the maintenance of minimum water levels on certain

reservoirs (thereby reducing the amount of water

available for irrigation). The plaintiffs sought judicial

review of the Biological Opinion, asserting that: (1) it

implicitly designated critical habitat for the

endangered fish; and (2) that designation violated

§ 1533(b)(2) because it was undertaken without

“tak[ing] into consideration the economic impact, and

any other relevant impact, of specifying any particular

area as critical habitat.” Bennett, 520 U.S. at 172.

The government sought dismissal of the claim by

asserting that, under § 1533(b)(2), FWS possessed

unreviewable discretion in deciding whether to exclude

particular areas from a critical-habitat designation

based on economic-impact considerations. The Court

rejected that assertion, stating, “the terms of

§ 1533(b)(2) are plainly those of obligation rather than

discretion.” Ibid. The Court stated that use of the

word “may” in the second sentence of § 1533(b)(2) did

not alter its conclusion that courts were authorized to

review—under an abuse of discretion standard—FWS’s

ultimate decision regarding whether to exclude

particular areas from a critical-habitat designation

based on cost-benefit considerations. Ibid.

This case arises in a posture somewhat different

from that in Bennett, in which the Government

contested the plaintiffs’ prudential standing to

challenge a critical-habitat designation. The Court

30

reversed a Ninth Circuit holding that the plaintiffs

lacked prudential standing to allege that the

designation violated § 1533(b)(2), and it held that each

of the plaintiffs’ claims was reviewable under either

the ESA citizen-suit provisions or the APA. Id. at 179.

The Government did not argue that 5 U.S.C.

§ 701(a)(2) precluded judicial review, and the Court did

not address that issue. But even if Bennett’s statement

that an FWS critical-habitat determination “is

reviewable ... for abuse of discretion” is properly

categorized as dicta, it is based on a well-reasoned

analysis of § 1533(b)(2) and ought to be followed in this

case. Certainly, nothing in the Fifth Circuit’s decision

suggests otherwise; it failed address Bennett’s

reviewability discussion.

II.

J UDICIAL R EVIEW I S P ARTICULARLY

WARRANTED WHEN, AS HERE, FWS HAS

FAILED TO IDENTIFY ANY BENEFITS DERIVED

FROM A CRITICAL-HABITAT DESIGNATION

The Fifth Circuit’s decision to bar judicial review

is particularly troubling because the evidence

overwhelmingly supports Weyerhaeuser’s contention

that FWS was unable to identify any benefits of Unit 1

critical-habitat designation that would offset the

admittedly severe economic burdens imposed on

landowners by that designation. Given the factual

record, the Court may wish to consider declaring that

FWS abused its discretion when it issued the final rule,

and ordering that the case be remanded to the agency

for further proceedings.

Amici note initially that no party contests that

the designation of Unit 1 as critical habitat imposes a

31

sizeable economic burden on Weyerhaeuser and the

other private parties who own land included within

Unit 1. FWS’s final rule designating Unit 1 as critical

habitat acknowledged that designation could cost

landowners as much as $34 million. JA189.

Moreover, that cost estimate fails to account for

economic burdens that the designation will impose on

those other than the landowners. For example, the

amicus curiae brief of St. Tammany Parish

Government catalogues the numerous economic

hardships that designating Unit 1 as critical habitat

will have on the local government. Those hardships

include: (1) interference with Parish plans to develop

the area along the corridor of Highway 3241, which is

now under construction; (2) loss of tax revenues if the

projected development of land within Unit 1 does not

materialize; and (3) environmental and health hazards

that would arise if (as would be necessary in order to

make Unit 1 habitable for the dusky gopher frog) fires

are regularly set to remove the loblolly forest currently

on the property. St. Tammany Br. 5-9. FWS’s refusal

to take into consideration those economic and

environmental impacts is an apparent violation of its

statutory duty under § 1533(b)(2); yet if the Fifth

Circuit’s no-review holding is upheld, administrative

errors of that sort will go uncorrected.

In contrast, there is no evidence that the dusky

gopher frog will benefit from the designation. Amici

note initially that Unit 1 is privately owned land and

that dusky gopher frogs have no means of reaching the

land on their own. FWS has no right to trespass on the

property for the purpose of introducing frogs, and there

is no evidence that the landowners contemplate

32

granting FWS permission to do so. Unless FWS

purchases the property from the current owners

(something it has never offered to do), dusky gopher

frogs will never reach Unit 1 and thus will never

benefit from a critical-habitat designation.

More importantly, the evidence indicates that if

dusky gopher frogs ever reached Unit 1, they could not

survive there. As FWS acknowledges, the dusky

gopher frog needs three things for its habitat. Two of

those essential features are absent from Unit 1: (1)

upland, open canopy forests close to its breeding ponds,

where the frog lives when it is not breeding; and (2)

upland habitat—featuring an open canopy and

abundant groundcover produced by frequent

fires—connecting its breeding and non-breeding

grounds. Those features will continue to be absent

unless the owners of Unit 1 voluntarily agree to

substantial modification of their property in order to

add them. But “the only evidence in the record is that

the owners do not plan to do so and there is no

evidence that economic or other considerations would

lead a reasonable landowner to create frog habitat on

Unit 1.” Pet. App. 76a-77a.

Indeed, the authors of FWS’s April 6, 2012

Economic Analysis conceded that they could not

identify any “direct benefits” to the dusky gopher frog

from designating Unit 1 as critical habitat:

Quantification and monetization of

species conservation benefits would

require information on the incremental

change in the probability of gopher frog

conservation that is expected to result

33

from the designation. No studies exist

that provide such information for this

species.

JA95. Instead, the study confined its discussion to

consideration of “ancillary benefits” of designation.

Even there, the only potential “ancillary benefits”

identified by the study were those “related to the

avoidance of development of Unit 1.” JA97. And the

study did not conclude any such benefits actually exist;

rather, it simply speculated (contrary to the conclusion

of St. Tammany Parish officials) that: (1) “[o]pen space

or decreased density in development resulting from

gopher frog conservation may increase adjacent or

nearby property values”; (2) [s]ocial welfare gains may

be associated with enhanced aesthetic quality of

habitat”; and (3) “[d]ecreased development may lead to

protection and improvement of water quality and

preservation of natural habitat for other species.”

JA97-98.

Of course, similar, unsubstantiated speculation

could be advanced in support of any critical-habitat

designation. But the bottom line is that none of the

speculated benefits of deterring development has

anything to do with the purpose of designating criticalhabitat designation: to ensure the survival of an

endangered species. In the absence of any evidence

that the designation of Unit 1 would benefit the dusky

gopher frog, the relevant “benefits” of FWS’s

designation are precisely zero, and the ratio of costs to

benefits is infinite.

Given § 1533(b)(2)’s mandate that FWS consider

economic impact when designating critical habitat, at

34

some point the imbalance between costs and benefits

becomes so great that the only rational decision is to

exclude the area in question. As the Court recently

explained, “One would not say that it is even rational,

never mind ‘appropriate,’ to impose billions of dollars

in economic costs in return for a few dollars in health

or environmental benefits.” Michigan v. EPA, 135 S.

Ct. at 2707. Yet the Fifth Circuit’s ruling bars courts

from ever reviewing FWS’s cost-benefit determinations

that favor designation, no matter how irrational.

Moreover, given that FWS proceeded with its

Unit 1 designation despite a record demonstrating an

infinite cost-benefit ratio and failed to consider all

relevant economic impacts, amici urge the Court to

reach the merits of Weyerhaeuser’s § 1533(b)(2) claim

and hold that the designation was arbitrary,

capricious, and an abuse of discretion, in violation of 5

U.S.C. § 706(a)(2).

To demonstrate its compliance with

§ 1533(b)(2)’s directive that it designate critical habit

only after taking into consideration the economic

impact of doing so, FWS must at a minimum

“articulate a satisfactory explanation for its action

including a rational connection between the facts found

and the choices made.” Motor Vehicle Mfrs. Ass’n of

United States, Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983). FWS has failed to meet that

burden.

Instead of providing a “satisfactory

explanation” for its decision, its entire analysis of costbenefit comparisons consisted of a single sentence:

“Our economic analysis did not identify any

disproportionate costs that are likely to result from the

designation.” JA 190. The Court should reverse with

35

directions that the case be remanded to FWS to provide

the agency with an opportunity to provide a

satisfactory explanation for its decision.

FWS failure to provide a reasoned decision was

likely a product of its mistaken belief that it was

entitled to unreviewable discretion to ignore economic

impacts identified by its economic analyses and to

designate critical habitat without regard to those

impacts. As demonstrated above, FWS lacks such

unreviewable discretion. Accordingly, if FWS really

possesses a rational basis for making a critical habitat

designation that cannot possibly benefit the dusky

gopher frog, it ought to be permitted an opportunity to

explain what that basis is. Alternatively, the Court

should remand the case to the Fifth Circuit with

directions for the appeals court to consider in the first

instance whether FWS abused its discretion when it

designated Unit 1 as critical habitat.

CONCLUSION

The decision below should be reversed.

Respectfully submitted,

April 30, 2018

Richard A. Samp

(Counsel of Record)

Cory L. Andrews

Washington Legal Found.

2009 Massachusetts Ave., NW

Washington, DC 20036

202-588-0302

rsamp@wlf.org