Respondents Brief — Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 45 (2018) (No. 17-71)

Supreme Court brief2018

Ask Donna

What actually matters in this document.

Text

No. 17-71

In the Supreme Court of the Anited States

WEYERHAEUSER COMPANY, PETITIONER

UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JEFFREY H. Woop

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY E. SANDBERG

Assistant to the Solicitor

General

ANDREW C. MERGEN

MARY HOLLINGSWORTH

J. DAVID GUNTER II

Attorneys

Department of Justice

Wi C. 20580-0001

S L .gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the U.S. Fish and Wildlife Service (Ser-

vice) properly determined that a portion of petitioner's

land that was historically occupied by the endangered

dusky gopher frog, and that continues to contain valua-

ble habitat for the frog, is eligible to be designated as

“critical habitat” under the Endangered Species Act of

1973, 16 U.S.C. 1582(5)( Ai).

2. Whether the Service's decision not to exercise its

diseretionary authority to exclude petitioner’s land from

critical habitat on grounds of economic impact is commit-

ted to agency discretion by law.

(I)

TABLE OF CONTENTS

Page

ne 1

Be 1

Statutory and regulatory provisions involved ....................6.« 2

IID ccnsecsenserssznsssssssnssssszsessczscsscnsennsenessmmensnssesnesseseesqennesenentes 2

ET CE GRFIIIEID ccnsccccscecsssscsesnscenssssseersersereensensssseesnssannanses 17

Argument:

|. The Service properly designated Unit | as

unoecupied critical habitat 18

A. Unit 1 contains “habitat” for the dusky gopher —

“habitat” for the dusky gopher frog ............... 19

Under the Act, an area may be “habitat”

even if it does not satisfy the standards for

“occupied” “critical habitat” 2

The Service’s understanding that Unit | is

“habitat” reflects the best reading of the

statute and, at a minimum, warrants

deference 24

B. Unit 1 is “essential for the conservation of the

1. The Service properly determined that

Unit | is essential for the dusky gopher

frog’s recovery 34

2. The Act’s other conservation tools have no

bearing on the Service's duty to designate

critical habitat 41

C. Petitioner’s reliance on constitutional-

avoidance principles is misplaced .......................... 42

The Service's decision not to exercise its

discretionary authority to exclude Unit | is

committed to agency discretion by law ....................... 45

(IIT)

Table of Contentsa—Continued Page

A. The Act provides no meaningful standard to

evaluate the Service's decision not to exclude

land from critical habitat 45

8. Petitioner identifies no meaningful standard

for reviewing the Service's decision not to

exclude Unit 1 wu. 48

C. To the extent the Service's decision not to

exclude Unit | is found to be reviewable, it

should be upheld

TABLE OF AUTHORITIES

Alabama Tombigbee Rivers Coal. v. Kempthorne,

477 F.3d 1250 (11th Cir. 2007), cert. denied,

GGZ U.S. 1087 (2O0B)............-cnerervernssernrneenensensensnsnnsnennensensnees 44

Babbitt v. Sweet Home Chapter of Communities for

a Great Or., 515 U.S. 687 (1996).............5, 30, 31, 32, 41, 51

Baldwin v. Fish & Game Comm'n, 436 U.S. 371

Ge treensennssssnessenensrecssnsensneverssesnsnesessemnasnensnsnsnstsenemnssssensssas 29

Baltimore Gas & Elec. Co. v. National Res. Def.

Council, Inc. 462 U.S. 87 (198B) ........cccccccceccnecnesnnennnnnnnnnne 37

Bear Valley Mut. Water Co. v. Jewell, 790 F 3d YTT

(9th Cir. 2015), cert. denied, 136 8. Ct. 799

(2016) 27, 48, 51

Bennett v. Spear, 520 U.S. 154 (1997) 45, 49, 5O

Building Indus. Ass'n of the Bay Area v. United

States Dep't of Commerce, 792 ¥ 3d 1027 (9th Cir.

2015), cert. denied, 137 S. Ct. 328 (2016).................... 48, 49

Center for Biological Diversity v. United States Fish

& Wildlife Serv., No. 09-ev-90, 2011 WL, 73494

Re GS Sa, a ercemerecereecesernencccscnsnsseneeensesesecens 27

Cases—Continued: Page

Center for Native Ecosystems v. Cables, 09 ¥ 3d

1310 (10th Cir. 2007) 4

Central Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006)......... 5O

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc. , 467 U.S. SBT (19BA).......cccececevesnrerevensnnenennnensnrnnenensnnes 31

Citizens to Preserve Overton Park, Inc. v. Volpe,

GEE TB, GED CU DD sec scczszcsenscsszssszsssserscsssnccssessszssssesscscecocsses 46

Cuozzo Speed Techs., LC v. Lee, 136 8. Ct. 2131

ne 38

Department of Homeland Sec. v. Maclean,

ee Ge Ba ee cererrrnrsrereserreeneeerennceeseeseeees 37

GDF Realty Inva., Lid. v. Norton, 326 ¥ 3d G22

(5th Cir. 2008), cert. denied, 545 U.S. 1114 (2005)........... 4A

Gibbs v. Babbitt, 214 F 3d 4838 (4th Cir. 2000),

cert. denied, 531 U.S. 1145 (2001) ..........ccccceenenenennenens 44

Gifford Pinchot Task Force v. United States Fish

& Wildlife Serv., 378 F 3d 1059 (9th Cir. 2004)................. 4

Gonaales v. Raich, 545 U.S. (2008) 2.........ccccccccerceeeeeneennnns M4

Heckler v. Chaney, 470 U.S. 821 (198B).........0cce 46, 49

Home Builders Ass'n v. United States Fish &

Wildlife Serv., 616 F 3d 983 (9th Cir. 2010),

cert. denied, 542 U.S. 1217 (2011) ........................ 26, 40

!CC v. Brotherhood of Locomotive Eng'rs,

8 f2

INS v. Yang, 519 U.S. 26 (1996) - 48

Jennings v. Rodrigues, 138 8. Ct. 830 (2018) meen 42, 43, 44

Lincoln v. Vigil, SOB U.S. 182 (199B) .......cccceceernrnerernennnnen 49

Mach Mining, LLC v. EEOC, 135 8. Ct. 1645

(2015) 48, 49

Marsh v. Oregon Nat. Res. Council, 490 US. 360

Cases—Continued: Page

Merit Mgmt. Grp., LP v. FT! Consulting, Inc.,

Ge, BaD cnrennernnscsncnnsensnnnenssssereneneseesvecscssessesees 28

Murr v. Wisconsin, 137 8. Ct. 1983 (2017) «0.0... 29

National Ass'n of Home Builders v. Babbitt,

130 F.3d 1041 (D.C. Cir. 1997), cert. denied,

GG UE, GU CO accccscencsvenscsccssczscscescecssscsszssscssesocsecesecoosces 44

National Ass'n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644 (2007) .......ccccccccsesersnennnnnnnnnnnennnnnnnnen 6

Oregon Nat. Res. Council v. Allen, 476 F 3d 1081

BR GR, Be Ds wrncncsnsssneseensnssssssnsnsssnvensnenenecsemncnnenscesscocssnenes 29

People for Ethical Treatment of Prop. Owners v.

United States Fish & Wildlife Serv., 852 ¥F 3d 990

(10th Cir. 2017), cert. denied, 138 S. Ct. 649 (2018)......... 42

Rapanos v. United States, 547 U.S. 715 (2006).......... ...... 13

Robinson v. Shell Oil Co., 519 U.S. 387 (1997).............. 28, 32

Rubin v. Islamic Republic of Iran, 138 8. Ct. 816

ED censcsesssnssszscsssnsssscsnzsssensnnenssnsnsnnssssnusncsnsnnennensenemensecsoestee 24

San Luis & Delta-Mendota Water Auth. v. Salazar,

638 F.3d 1168 (9th Cir.), cert. denied, 565 U.S. 1009

(BDI 1) ....oreceerecceccnsvescoeseconeneeceseossnsnssscserenseseseesecessesssssceseeseees 4“

Sierra Club v. U.S. Fish & Wildlife Serv.,

2AB F.3d 434 (Gth Cir, 2001) 0... .cccccceresesnenerennenenennnnenes 4, 42

Solid Waste Agency of N. Cook Cnty. v. United

States Army Corps of Eng'rs, 531 U.S. 159

(2001) 13, 26, 29, 43

Tennes.weco Valley Auth. v. Hill, 437 U.S. 158 (1978).......... 31

United States v. Gonzales, 520 U.S.1 (1997)... 29

United States v. Lopez, 514 U.S. 549 (1996) .......ccccceceeee 44

Webster v. Doe, 486 U.S. 592 (19BB) .......cccseccceeeenenennnnes 47, 49

Wild Fish Conservancy v. Salazar, 628 ¥ 3d 513

GRUB CR. BBE vccccccscsvscscsscssssesescsecssesscsvesessesesesscasesncssccecoseces 30

Yates v. United States, 135 8. Ct. 1074 (2015) ...........c000000 82

Vil

Constitution, statutes, and regulations: Page

U.S. Const. Art. 1, § 8, Cl. 3 (Commerce Clause)......... 15, 44

Administrative Procedure Act, 5 U.S.C. 701 et seq............ 15

5 U.S.C. 701(aX(2) 18, 46, 48, la

5 U.S.C. 706(2)(A) 18, 48, la

Clean Water Act, 33 U.S.C. 1251 et seq. 13

SB UBC. BBGGG A) ncscccccccccscececescererscsscescsnesecacscocasesecsscscecees 13

Endangered Species Act of 1973, 16 U.S.C. 1581

et seq. 2

16 U.S.C. 1581(b) 2, 30, da

16 U.S.C, 1581(e)(1) 41

16 U.S.C. 1582 (§ 3) 3, 23, 37, 3a

16 U.S.C. 158203) 3, 4, 30, 36, 38, 3a

16 U.S.C, 1582(5 AX) (§ 3(6)(A)()) ......3, 8, 23, 24, 38, 4a

16 U.S.C, 1582(5)(A)(i)-(ii) 8, 25, 28, 39, 4a

16 U.S.C, L582(5)(A)(ii) (§ 3(5)(AMID)............-. passim, 4a

Ee 24

ee teteenesscssccscreenstsemscssmmnnmnnsmenens 2, 5a

16 U.S.C, 1582(15) 2

I 5, Sa

16 U.S.C. 1GBBBD) .........cccccecceeeeeseees 2, 5a

16 U.S.C. 1588 (§ 4) void, 4, 23, 25, 28, Ga

16 U.S.C. 1583(a)(1)(A) ............... - 31, Ga

ee 2, Ga

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

(§ 4(aX(3AXi)) veo, 19, 23, 25, 28, Ga

16 U.S.C. 1583(b)(2) (§ 4(b)(2)) passim, Ta

16 U.S.C. 1583(b)(3) (§ 4(b)(3)) ..... patna 40, Ta

16 U.S.C, 1538(b)8)(D)(i) 40, Ta

16 U.S.C. 1583(e)(1) 2

16 U.S.C, 1584 (2012 & Supp. IV 2016) (§ 5)........... 41, 8a

BG DED, FE © cecenrscceszvsssccemscosssemecsnensersmsecsnrese 41, 9a

Vill

Statutes and regulations—Continued: Page

BB CARE, FES FP ccrecsszsesscenenscssezscsscsscsscssee 5, 6, 12, 10a

0B CEEAG,, GRID cecerecresscssccsccscscersccncesszscesssccsvsssessese 42, 10a

16 U.S.C. U5BG(a)(1)........ccccccccccereerenenennenneeneenennnennns 41, 10a

ee 5, 10a

16 U.S.C. LBBB (BMA) .........ccccccceeceneennnnnenennnnnnnnns 6, 12a

BG UDA. BED OP ccereerccscssccccvecsccssccccsccecccccsenscceseseee 5, IGa

16 U.S.C, 16BB(a) UA) ....00000cccecccereeseerecsenernrenerenrenens 5, IGa

16 U.S.C, 15BBa) IBA C) ......ccccccecccceneeneeneenennnnnes 5, lGa

16 U.S.C. 15BBa) ICD) P) .....0ccccccesccseeeeennennnnnnns 5, 16a

16 U.S.C. 15B9C J) (8 10J)......0cccccceeeceeenennnnnnennnnns 42, 17a

16 U.S.C, 1BBOC JAMA) ....0cccccceccesesnensnenenenennnnnnnnnnns 42, 17a

16 U.S.C. LBB JM2M( CY) ..----eeooeeecoveeeenneeernnrennnnnen 42, 180

16 U.S.C. 156Ola)1D) .ccccoccsccsccsssessesssssessessessessessesssssesssees 5

16 U.S.C. IDA) MAAC) .0..cccccccccesnensenennnnnennnnnnnnnnns 45

16 U.S.C, [B40 IMC) .....0ccccccecesessnrnenennnnnnnnnenennnnennnnnen nO

16 U.S.C, 46088-1(b)(2)(B (i) en 30

EB 29

16 U.S.C, BROIL (a) AB) .......cccccccccceseeceesnenseennennennennennensennnnnes 29

ET Ee 29

16 U.S.C, G6OBID)CL IA) ........ccccccseesesnnsnnenennnnnnnnnnnennneneennnnnnnn 29

PS 49

50 C.F.R.:

EN en 2

een 2

Bertier GE ceccesceszcecescccccscsecscceeszccsscsscscesecsecscssonsesseses 2

pet GI cccncsseczensccsnrececersessersemesscssmsnnseneesesssresessssans 6

Bretinre GEE ccccecscsecssceccescsecscsescsececscsesscsececsssnscssscsscsecnneese 6

Rat GD cenccernecesnessccscnscssessemessccnmnnsscesesssescsnnsemanenn 6

Section 424. 12(b) (ZOU) .......cccccrseeersernnennnnnnns 8, 23, 198

Regulations—Continued Page

ee 40

I accenccsennensesscentinestetnansaneunaseittah 48, 22a

IIE icrrincesetcnsesnninapteheusesestmnnevdnnnenetinn 48, 23a

Miscellaneous:

A Legislative History of the Endangered Species

Act of 1973: Senate Comm. on Environment and

Publie Works, 97th Cong., 2d Sess. (1982) .............c0 39

American Heritage Dictionary (2d ed. 1982) ...............00+« 32

43 Fed. Reg. 870 (Jan. 4, 1978)............ccseseesereseennversenennenens 39

56 Fed. Reg. 40,002 (Aug. 13, 1991) .............cccccereeeeenennns 27

66 Fed. Reg. 62,998 (Dec. 4, 2001) ................. 6, 7, 8, 9, 10, 34

67 Fed. Reg. 40,790 (June, 13, 2002) ..........ccccccccceeennnennnen 27

73 Fed. Reg. 61,986 (Oct. 17, 2008) .0.0.....cccccccceneennnnes 26, 27

75 Fed. Reg. 31,387 (June 3, 2010)..............cccccccceseoee &, 9, 10

76 Fed. Reg. 59,774 (Sept. 27, 2011) ..........c.ccccccceeeeesenenennnee 36

77 Fed. Reg. 35,118 (June 12, 2012)...............cccccceeseeerenenenes 10

78 Fed. Reg. 8746 (Feb. 6, 2013) ................ccccceessesereeeeennenee 27

78 Fed. Reg. 10,450 (Feb. 13, 2013) .............cccccceceenennneneee 28

79 Fed. Reg. 69,312 (Nov. 20, 2014) .............ccccccseeecerenneneee 26

81 Fed. Reg. 7226 (Feb. 11, 2016) .............ccccccceees 3, 42, 48

81 Fed. Reg. 59,045 (Aug. 26, 2016) ..............ccccecreeennnene 28

82 Fed. Reg. 39,160 (Aug. 17, 2017) ............ccccceceeeeeeeennennes 26

H.R. 14104, 95th Cong., 2d Sess. (as amended

and passed by the House, Oct. 14, 1978) .................... 39, 47

H.R. Rep. No. 412, 98d Cong., Ist Sess. (1973) ............ 31, 41

H.R. Rep. No. 1625, 95th Cong., 2d Seas.

(Ue ccssessccscesccscsszenssecsszepnssemmsenscensensnansnnensesved 6, 31, 47, 48, &2

Ozford English Dictionary (2d ed. 1989) 0.0... 33

Random House College Dictionary (1990)... 33

S. 2899, 95th Cong., 2d Seas. (as passed by the

A ey a See cerccceretsetnseseinesescteenenneeeseneeis 39

Miscellaneous—Continued: Page

S. Rep. No. 752, 79th Cong., Ist Sess. (1945)...........-..000 46

U.S. Fish & Wildlife Serv.:

Dusky Gopher Frog (Rana sevosa) Five-Year

Review: Summary and Evaluation (2015),

http://perma.ce/24DJ-KQHP...............c0eseeeeeeeeenennnnes s

Dusky Gopher Frog (Rana sevosa) Recovery

Plan (2015), http://perma.ce/C9TQ-

DJZU 7, 11, 13, 24, 34, 35

Webster's Third New International Dictionary

EN 32, 33

In the Supreme Court of the United States

No. 17-71

WEYERHAEUSER COMPANY, PETITIONER

UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-77a)

is reported at 827 F.3d 452. The opinion of the district

court (Pet. App. 78a-122a) is reported at 40 F. Supp. 3d

744,

JURISDICTION

The judgment of the court of appeals was entered on

June 30, 2016. A petition for rehearing was denied on

February 13, 2017 (Pet. App. 123a-162a). On March 27,

2017, Justice Thomas extended the time within which to

file a petition for a writ of certiorari to and including

June 29, 2017. On June 9, 2017, Justice Thomas further

extended the time to and including July 13, 2017. The

petition for a writ of certiorari was filed on July 11, 2017,

and granted on January 22, 2018. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

(1)

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

Pertinent statutory and regulatory provisions are set

forth in the appendix to this brief. App., infra, la-23a.

STATEMENT

1. a. Congress enacted the Endangered Species Act

of 1973 (Act), 16 U.S.C. 1531 et seq., to provide “a means

whereby the ecosystems upon which endangered species

and threatened species depend may be conserved” and

“a program for the conservation of such endangered spe-

cies and threatened species.” 16 U.S.C. 1531(b). Re-

sponsibility for administering the Act is shared by the

Secretary of the Interior and the Secretary of Com-

merce. 16 U.S.C. 1532(15). The U.S. Fish and Wildlife

Service (Service) implements the Act with respect to spe-

cies under the jurisdiction of the Secretary of the Inte-

rior. 50 C.F.R. 402.01(b).

Section 4 of the Act directs the Service to identify spe-

cies that are “endangered” or “threatened” and to list

them by regulation published in the Federal Register.

16 U.S.C. 1533(a)(1)-(2) and (c)(1); see 50 C.F.R. 17.11-

17.12.' When the Service lists a species as endangered

or threatened, Section 4 also requires the Service, “to the

maximum extent prudent and determinable,” to issue a

regulation that “designate|s| any habitat of such species

which is then considered to be critical habitat.” 16 U.S.C.

1533(a)(3)(A)(); see 50 C.F.R. 17.95-17.96.

' An “endangered species” is “any species which is in danger of ex-

tinetion throughout all or a significant portion of its range.” 16 U.S.C.

1582(6). A “threatened species” is “any species which is likely to be-

come an endangered species within the foreseeable future throughout

all or a significant portion of its range.” 16 U.S.C. 1532(20).

Section 3 of the Act defines a species’ “critical habi-

tat” to include two kinds of areas: occupied and unoccu-

pied. Occupied critical habitat consists of “the specific

areas within the geographical area occupied by the spe-

cies, at the time it is listed * * * , on which are found those

physical or biological features (1) essential to the conser-

vation of the species and (II) which may require special

management considerations or protection.” 16 U.S.C.

1532(5)(A)(i). Unoecupied critical habitat consists of “spe-

cific areas outside the geographical area occupied by the

species at the time it is listed” if the Service “deter-

minjes} *** that such areas are essential for the con-

servation of the species.” 16 U.S.C. 1532(5)(A)(ii). At all

times relevant here, the Service’s regulations allowed it

to designate unoccupied critical habitat “only when a

designation limited to [the species’| present range would

be inadequate to ensure the conservation of the species.”

50 C.F.R. 424.12(e) (2012).”

As noted, both occupied and unoccupied critical habi-

tat are defined in reference to what is “essential” for

“conservation” of the species. 16 U.S.C. 15382(5)(A)(i)-(ii).

The Act defines “conservation” to mean “the use of all

methods and procedures which are necessary to bring

any endangered species or threatened species to the

point at which the measures provided pursuant to this

chapter are no longer necessary.” 16 U.S.C. 1582(3).

* In 2016, the Service amended its regulations governing designa-

tion of critical habitat. 81 Fed. Reg. 7414 (Feb. 11, 2016). The Service

has since agreed to reconsider those amendments as part of a litiga-

tion settlement. See Alabama v. National Marine Fisheries Serv.,

16-cv-593 Docket entry No. 55 (S.D. Ala. Mar. 15, 2018). Because the

critical-habitat designation at issue here was governed by pre-2016

regulations, neither the 2016 amendments nor their pending recon.

sideration has any direct bearing on this case.

Such conservation measures include “all activities asso-

ciated with scientific resources management,” such as

“habitat acquisition and maintenance, propagation, live

trapping, and transplantation.” /bid.

Because “conservation” includes the goal of achieving

a species’ recovery—the point at which it is “no longer

necessary” to list the species as endangered or threat-

ened, 16 U.S.C. 1532(3)—“‘{clonservation’ is a much

broader concept than mere survival.” Sierra Club v. U.S.

Fish & Wildlife Serv., 245 F.3d 434, 441-442 (5th Cir.

2001). Accordingly, areas that are “essential to the con-

servation of the species,” and therefore properly desig-

nated as critical habitat, may include “not only [areas]

necessary for the species’ survival but also [areas] essen-

tial for the species’ recovery.” Gifford Pinchot Task

Force v. United States Fish & Wildlife Serv., 378 F.3d

1059, 1070 (9th Cir. 2004) (citation omitted); see also, e.g.,

Center for Native Ecosystems v. Cables, 509 F.3d 1310,

1322 (10th Cir. 2007) (“(C]lonservation encompasses re-

covery.”); J.A. 128 (“(Conservation] is a broader stand-

ard than simply survival.”).

Section 4 of the Act requires that, in designating crit-

ical habitat, the Service must rely on the “best scientific

data available” and “takje] into consideration the eco-

nomic impact, the impact on national security, and any

other relevant impact, of specifying any particular area as

critical habitat.” 16 U.S.C. 1533(b)(2). It also provides

that the Service “may exclude any area from critical hab-

itat if [it] determines that the benefits of such exclusion

outweigh the benefits of specifying such area as part of

the critical habitat,” so long as “the failure to designate

such area as critical habitat will [not] result in the extinc-

tion of the species concerned.” /bid. The Act otherwise

does not specify whether or when the Service should ex-

ercise its discretionary exclusion authority.

b. The listing of a species as endangered, and the des-

ignation of its critical habitat in turn, give rise to distinct

legal consequences.

The Act establishes numerous protections applicable

to the endangered species itself. For example, Section 9

of the Act generally makes it unlawful to “take” an en-

dangered species, 16 U.S.C. 1538(a)(1)(B){C), meaning

to “harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect [the species], or to attempt to engage

in any such conduct,” 16 U.S.C. 1532(19). Such unlawful

“takling]” includes “habitat modification that results in

actual injury or death to members of an endangered or

threatened species.” Babbitt v. Sweet Home Chapter of

Communities for a Great Or., 515 U.S. 687, 697 (1995).

The Act also forbids the import, export, possession,

transportation, or sale of endangered species. 16 U.S.C.

1538(a)(1)(A) and (D)-(F). Those prohibitions, applicable

to both private and governmental actors, are enforceable

through criminal and civil penalties. 16 U.S.C. 1540(a)-(b).

By contrast, the designation of a species’ critical hab-

itat “does not impose a legally binding duty on private

parties.” J.A. 119. Instead, Section 7 of the Act requires

“lejach Federal agency” to, “in consultation with and

with the assistance of the [Service], insure that any ac-

tion authorized, funded, or carried out by such agency

*** is not likely” either to “jeopardize the continued

existence” of the listed species, 16 U.S.C. 1536(a)(2), or

to “result in the destruction or adverse modification of

habitat of such species which is determined by the [Ser-

vice| * * * to be critical,” ibid. If this consultation pro-

cess demonstrates that a proposed agency action is likely

to jeopardize a species or destroy or adversely modify its

critical habitat, the Service is required to issue a biological!

opinion that “suggest/s| * * * reasonable and pruden, al-

ternatives” to the proposed action, if available. 16 U.S.C.

1586(b)(3)(A); see 50 C.F'.R. 402.02 (defining such alterna-

tives). The federal agency may then choose either to “ter-

minate the [proposed] action, implement the proposed al-

ternative, or seek an exemption from the Cabinet-leve!

Endangered Species Committee.” National Ass'n of

Home Builders v. Defenders of Wildlife, 551 U.S. 644, 652

(2007); see 50 C.F.R. 402.15. This Section 7 consultation

process is only required, however, if the proposed action

involves “‘discretionary Federal involvement or contro!’”

rather than implementation of a “mandatory agency di-

rective|}.” 551 U.S. at 666 (quoting 50 C.F.R. 402.08).

Because Section 7 is triggered only when an independ-

ent federal nexus exists, the designation of private land as

critical habitat “[ijn many cases * ** may have little or

no impact on activities within the area of the habitat.”

H.R. Rep. No. 1625, 95th Cong., 2d Seas. 10 (1978) (1978

House Report). Such a designation “does not allow the

government or public to access private lands”; “does not

require implementation of restoration, recovery, or en-

hancement measures by non-Federal landowners”; and

does not “affect land ownership or establish a refuge, wil-

derness, reserve, preserve, or other conservation area.”

J.A. 140; see J.A. 119-120; Pet. App. 2a. Thus, although

the designation may ultimately have consequences for the

use or value of private land, such land is affected only if a

project requires discretionary action by a federal agency.

2. a. The dusky gopher frog (Rana sevosa) was

listed as an endangered species in 2001. 66 Fed. Reg.

62,993." The frog breeds in isolated ephemeral ponds—

* The frog was then known as the “Mississippi gopher frog.” 66 Fed.

Reg. at €2,998.

ponds not connected to other water bodies and that exist

only seasonally—and then spends most of its adult life in

tree stumps, holes, or burrows created by other species.

Id. at 62,994. Thus, the frog’s “habitat includes both up-

land sandy habitats historically forested with longleaf

pine and isolated temporary wetland breeding sites em-

bedded within the forested landscape.” /bid.; see J.A. 56-

57 (photographs of frog and habitat).

The dusky gopher frog is “one of the most imperiled

species (or sub-species) in the United States.” J.A. 45.

According to historical records, the frog at one time lived

throughout parts of Alabama, Louisiana, and Missis-

sippi. 66 Fed. Reg. at 62,994; see J.A. 58 (historical

range). By 2001, however, the Service knew of only one

population surviving in the wild: approximately 100 adult

frogs at a single pond (Glen's Pond) in Harrison County,

Mississippi. 66 Fed. Reg. at 62,995; see J.A. 56 (photo-

graph of Glen’s Pond). The “primary factor” in the frog’s

decline was “urbanization and conversion of forest to

pine plantation.” 66 Fed. Reg. at 62,994-62,995. The Ser-

vice found that the species’ continued existence was en-

dangered by its small population and the fragmentation

and destruction of its habitat. /d. at 62,997-63,000.

Since 2001, naturally occurring dusky gopher frogs

have been seen at two other sites in an adjacent county

(Jackson County, Mississippi), and another population

was established there through translocation. U.S. Fish &

Wildlife Serv., Dusky Gopher Frog (Rana sevosa)

Recovery Plan 6-7 (2015), http://perma.ce/C9TQ-DJZU

(Recovery Plan). Nonetheless, as of 2015, only an esti-

mated “minimum of 135 individual adult frogs survive in

the wild.” /d. at iv. Almost all are at Glen’s Pond, which

is “the only population that is considered stable.” /d. at 7.

Accordingly, “the dusky gopher frog remains critically

endangered.” U.S. Fish & Wildlife Serv., Dusky Gopher

Frog (Rana sevosa) Five-Year Review: Summary and

Evaluation 3 (2015), http://perma.ce/24DJ-KQHP. “The

establishment of additional populations” of the frog re-

mains “critical to protect the species from extinction and

provide for the species’ eventual recovery.” J.A. 115.

b. When the Service listed the frog as endangered in

2001, it did not have resources available to immediately

designate the frog’s critical habitat. 66 Fed. Reg. at

63,000. In 2007, respondent Center for Biological Diver-

sity sued the Service challenging its failure to designate

critical habitat. That suit ended in a court-approved set-

tlement. J.A. 103.

The Service published an initial proposed designa-

Lion in 2010, which included both occupied and unoccu-

pied critical habitat. 75 Fed. Reg. 31,387. To determine

the frog’s “occupied” critical habitat, the Service identi-

fied the “physical or biological features” that were “es-

sential to the conservation of the species” and that “may

require special management considerations or protec-

tion.” 16 U.S.C. 1582(5)(A)(i). The Service's proposed

rule identified three “primary constituent elements”

(PCEs) that it found “essential” for the frog’s conserva-

tion. 75 Fed. Reg. at 31,391; ef. 50 C.F.R. 424.12(b)

(2012). These “PCEs” were: (1) isolated, ephemeral

ponds in which the frog may breed, with specified can-

opy, vegetation, water-quality, and land-management

characteristics; (2) “{u}pland forested nonbreeding habi-

tat,” also with various specified characteristics; and

(3) “upland connectivity habitat between breeding and

nonbreeding habitats.” 75 Fed. Reg. at 31,398, 31,404.

The Service found that the four Mississippi sites occu-

by the frog contained those fea ures, and it pro-

posed to designate each as critical habitat. /d. at 31,395.

The Service also proposed to designate seven areas in

of the species resulting from stochastic events and pro-

vide for the species’ eventual recovery.” /d. at 31,397.

The Service obtained peer review of its proposal by

six specialists with expertise concerning the frog and re-

lated species, the region’s geography and ecology, and

conservation-biology principles. J.A. 105-108. The re-

viewers were “united in their assessment” that the Ser-

vice’s proposed critical-habitat designation was “inade-

quate for the conservation of the dusky gopher frog.”

J.A. 124. The reviewers emphasized that the frog would

be at greater “risk of extirpation” from localized threats

such as “drought or disease” if critical habitat was lim-

ited to “southern Mississippi.” J.A. 13-14. The reviewers

therefore urged the Service vo “look within the species’

historic range outside the state of Mississippi for addi-

tional habitat for the designation.” J.A. 124.

The Service then undertook to identify additional

habitat within the species’ historical range. As noted, al-

though the frog lives most of its adult life belowground

in forested uplands, its breeding site is “an isolated pond

*** that dries completely on a cyclic basis.” 66 Fed.

Reg. at 62,994. Such a pond must retain water long

enough to “allow hatching, development, and metamor-

phosis” of the frog, but not so long as to support fish that

prey on the frog’s eggs or larvae. /bid.; see J.A. 122.

Given the “importance [of such ponds] to survival of the

species,” and the “rarity of open-canopied, isolated,

ephemeral! ponds” within the frog’s historical range, the

Service focused its efforts specifically on breeding habi-

tat. J.A. 124; see J.A. 158.

One of the peer reviewers, Dr. Joseph Pechmann,

called the Service's attention to a site in St. Tammany

Parish, Louisiana. J.A. 14. This site, later designated

“Unit 1,” was the last known site inhabited by dusky go-

pher frogs outside of Mississippi; the frog was last seen

there in 1965. J.A. 167. Unit 1 includes five isolated

ephemeral ponds and associated uplands on private

property managed for timber operations. J.A. 166-167.

Dr. Pechmann advised that Unit 1 “contains the best re-

maining collections of breeding ponds for gopher frogs in

Louisiana and some of the best ponds available anywhere

in the historic range of the frog.” Administrative Record

(A.R.) 2408. He further observed that, although the sur-

rounding “terrestrial habitat” was “currently in commer-

cial pine plantations,” the habitat “retainjed|] some

stump holes” in which adult frogs could live and “could

be restored” into optimal terrestrial habitat. J.A. 14.

With petitioner’s consent, the Service conducted a field

visit to Unit 1. See J.A. 17-20 (photographs from visit);

A.R. 6734-6779 (additional photographs).

3. a. Following a revised proposed designation, addi-

Lional peer review, public comment, and a public hearing,

the Service finalized its designation of critical habitat in

2012. J.A. 99-199 (77 Fed. Reg. 35,118). Its final rule des-

ignated 6477 acres of critical habitat, all within the frog’s

historical range. J.A. 100; see J.A. 165-180. The Service

included 1544 acres of Unit 1, finding the area to be “es-

sential for the conservation of the species.” 16 U.S.C.

1532(5)(A)(ii); see J.A. 166-167.

The Service found that Unit 1 provides “(bjreeding

habitat for the dusky gopher frog in a landscape where

the rarity of that habitat is a primary threat to the spe-

cies.” J.A. 126. The Service explained that the five

ephemeral ponds not only remained “intact and of re-

markable quality,” J.A. 160, but were “similar to ponds

where dusky gopher frogs currently breed in Missis-

sippi,” J.A. 125. Indeed, the Service determined that,

“{bJased on the best scientifie information available,” the

“five ponds in Unit 1 provide breeding habitat that in its

totality is not known to be present elsewhere within the

historic range of the dusky gopher frog.” /bid.; see

J.A. 160 (“[N]jo group of five ponds such as these was

found” in Mississippi.). The Service further explained

that “{i}f dusky gopher frogs are translocated to the site,

the five ponds are in close enough proximity to each

other that adult frogs could move between them and cre-

ate a meta-population, which increases the chances of the

long-term survival of the population.” J.A. 167; ef. Re-

covery Plan 33-34 (discussing “metapopulations”). At

the same time, the Service found that Unit 1’s distance

from other critical habitat “likely provides protection

from environmental stochasticity,” such as droughts or

disease. J.A. 126. The Service therefore concluded that

“|m|Jaintaining the five ponds within this area as suitable

habitat” is “essential to decrease the risk of extinction of

the species resulting from stochastic events and | to] pro-

vide for the species’ eventual recovery.” J.A. 167; see Re-

covery Plan 4 (similar).

The Service acknowledged that the uplands of Unit |

were then “poor quality terrestrial habitat” for the frog.

J.A. 160, But it found that the uplands would be “restor-

able with reasonable effort” to meet the standards

deemed essential for the frog’s long-term recovery.

J.A. 167. Dr. Pechmann’s analysis supported this view.

J.A. 14, 52-58; A.R. 2408 (“It’s much easier to restore a

terrestrial habitat for the gopher frog than to restore or

build breeding ponds.”).

The Service also acknowledged that it could not com-

pel Unit 1’s owners to allow the frog’s return. J.A. 122-

123. But it “hope[d] to work with the landowners to de-

velop a strategy that will allow them to achieve their ob-

jectives” while also “protect|ing| the isolated, ephemeral

ponds that exist there.” J.A. 123. The Service noted that

federal funds may be available for such efforts. /bid.

b. As required by the Act, see 16 U.S.C. 1583(b)(2), the

Service considered the economic impact of its critical-

habitat designation. J.A. 184-190. After considering the

record, including a detailed economic analysis performed

by a consultant, see J.A. 63-98 (excerpts), the Service

found “considerable uncertainty” concerning the eco-

nomic impact upon Unit 1. J.A. 188. The Service noted

that the designation would not affect the current use of

Unit | for timber operations— inasmuch as no federal ap-

provals are required to continue that activity—and it ob-

served that the “timber lease on the|| property does not

expire until 2043.” J.A. 123.

The Service noted that Unit 1's landowners hoped

eventually to undertake residential and commercial de-

velopment. But the Service found it unclear whether “a

Federal nexus for development activities” would ever ex-

ist. J.A. 188. The Service observed that Section 7 con-

sultation would be triggered if Unit 1 were determined

to contain “jurisdictional wetlands” and if the landown-

ers proposed to discharge fill material into those wet-

lands. /bid.; see 33 U.S.C. 1344(a). But the Service found

it uncertain whether the Clean Water Act, 33 U.S.C. 1251

et seq., would require a discharge permit. J.A. 188-189;

see Solid Waste Agency of N. Cook Cnty. v. United States

Army Corps of Eng’rs, 531 U.S. 159, 171-172 (2001) (“nav-

igable waters” did not include “isolated ponds, some only

seasonal, wholly located within two Illinois counties”

based on presence of migratory birds); see also Rapanos

v. United States, 547 U.S. 715, 733-734 (2006) (plurality

opinion); ef. Recovery Plan 21 (contemplating that “iso-

lated wetlands, such as dusky gopher frog breeding sites,”

may not fall “under Federal jurisdiction”).

Lacking definitive information about the landowners’

plans and the jurisdictional status of Unit 1’s ponds, the

Service posited three hypothetical economic-impact sce-

narios. J.A. 77. In the first scenario, future uses of Unit |

would not require any federal permits and thus would not

trigger Section 7 consultation, and the critical-habitat

designation would therefore “not result in any incremen-

tal economic impact.” J.A. 68.

In the second and third scenarios, the Service as-

sumed that future development of Unit 1 would both oc-

cur and require a Clean Water Act permit. Scenario 2

posited that, after consultation, the landowners would

develop 40% of the site and set aside 60% for conserva-

tion, which would “provide a meaningful conservation

benefit to the gopher frog.” J.A. 84. The Service calcu-

lated the economic impact in this scenario at $20.4 mil-

lion. J.A. 91.

Scenario 3 posited that 100% of the site would be re-

quired for conservation and that no Clean Water Act per-

mit would issue, with an estimated economic impact of

$33.9 million. J.A. 92. The Service found this scenario

unlikely, however, because “virtually all” projects “can

be implemented successfully with, at most, the adoption

of reasonable and prudent alternatives.” J.A. 120. The

Service stated that “if the landowners agree to allow the

Service to re-introduce the gopher frog in a portion of

the unit, the Service anticipates the remainder would be

available for development activities.” J.A. 84.

The Service then considered whether to exercise its

discretionary authority to exclude Unit 1 on the basis

that “the benefits of such exclusion outweigh the benefits

of specifying such area as part of the critical habitat.”

16 U.S.C. 1533(b)(2); see J.A. 189-190. The Service found

that the designation would have substantial conservation

benefits “in biological terms.” J.A. 189. The Service fur-

ther observed that “[its] economic analysis did not iden-

tify any disproportionate costs that are 'ikely to result

from the designation.” J.A. 190. Accordingly, the Ser-

vice declined to “exercis|e] [its] discretion to exclude any

areas from thie] designation of critical habitat.” /bid.

4. Petitioner Weyerhaeuser Company owns part of

Unit 1, leases the remainder, and currently manages the

land for commercial timber production. See Pet. Br. 16;

Markle Br. 6, 12. Petitioner or its predecessor has leased

Unit 1 and its surrounding lands since 1953, and its cur-

rent lease will expire in 2043. J.A. 80-81 & n.81. Peti-

tioner has also reached an understanding with other

landowners to develop the property “when market con-

ditions are amenable.” J.A. 80; cf. J.A. 81 n.81 (reporting

landowner statement that such development “would not

occur until 2043”).

In 2013, petitioner and other landowners, including

respondents Markle Interests, LLC et al (collectively

plaintiffs), brought suit in the Fastern District of Louisi-

ana challenging the Service’s designation of Unit | as

unoccupied critical habitat. Plaintiffs asserted, inter

alia, that the Service's actions violated the Endangered

Species Act and the Administrative Procedure Act

(APA), 5 U.S.C. 701 et seq., and exceeded Congress’s au-

thority under the Commerce Clause. The district court

consolidated the suits and allowed respondents Center

for Biological Diversity and Gulf Restoration Network to

intervene as defendants.

The district court entered summary judgment for the

Service. Pet. App. 78a-122a. The court held that the Ser-

vice’s determination of critical habitat was consistent

with the Act and that its finding that Unit 1 was essential

for the frog’s conservation was adequately supported by

the administrative record. /d. at 102a-110a. The court

also concluded that because “[t/he record confirm[ed|

that [the Service] considered potential economic im-

pacts” and “costs associated with Section 7 consultation,”

the Act did not allow it to second-guess the agency’s

judgment that the “impacts to Unit 1 were not dispro-

portionate.” /d. at 117a-118a.

5. a. The court of appeals affirmed. Pet. App. la-77a.

The court of appeals concluded that the Service’s des-

ignation of Unit 1 as unoccupied critical habitat was con-

sistent with the Act and supported by the administrative

record. Pet. App. 15a-32a. The court noted that plain-

tiffs had not challenged the Service’s finding that a des-

ignation limited to the frog’s occupied habitat would be

inadequate, id. at 17a, nor had they “dispute[d] the sci-

entific or factual support for the Service’s determina-

tion{s]” concerning the value of Unit 1, id at 20a-21a.

The court concluded that the Service’s interpretation of

the term “essential” was reasonable and “entitled to

Chevron deference,” id. at 22a, and it upheld the Ser-

vice’s designation after finding that “in this case, sub-

stantial, consensus, scientific evidence in the record sup-

ports the Service’s conclusion” that Unit 1 was essential

for the frog’s conservation, id. at 30a n.20. In particular,

the court emphasized that Unit 1 contains isolated

ephemeral ponds that are rare, critical to the frog’s sur-

vival, and difficult to reproduce elsewhere. /d. at 29a.

The court of appeals also rejected plaintiffs’ argument

that the Service erred by declining to exclude Unit 1

from the critical-habitat designation on economic-impact

grounds. Pet. App. 32a-36a. The court concluded that

that claim was unreviewable because the Act sets forth

“no manageable standards for reviewing the Service's

decision not to exercise [that] discretionary authority.”

Id. at 34a.

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

pressed the view that Unit 1 was not “essential! {wr the

conservation” of the frog because the area currently

“plays no part in the conservation of that species,” id. at

48a, and there was “no reasonable probability that it

could actually be used for conservation” in light of plain-

tiffs’ opposition, id. at 61a; see id. at 49a-50a, 59a-63a.

b. Plaintiffs sought rehearing en banc, which was de-

nied. Pet. App. 123a-162a. Judge Jones, joined by five

judges, dissented from the denial. /d at 124a-162a.

Based on her assumption that Unit 1 is “uninhabitable”

by the dusky gopher frog, id. at 128a, Judge Jones

opined that Unit 1 was categorically ineligible to be des-

ignated as critical habitat. Judge Jones also disagreed

with the panel’s conclusion that the Service’s decision not

to exclude Unit 1 was committed to the agency’s discre-

tion. Jd. at 156a-162a.

SUMMARY OF ARGUMENT

1. The Service properly determined that Unit 1 both

contains “habitat” and is “essential for the conserva-

tion” of the dusky gopher frog.

A. Petitioner’s argument that Unit 1 is not “habitat”

rests on flawed factual and legal premises. The record

shows that the Service found that Unit 1 constitutes

“habitat” for the frog: it contains the isolated ephemera!

ponds needed for the frog’s breeding, as well as terres-

trial habitat that could be inhabited by adult frogs.

Petitioner’s contrary assumption demonstrates its

mistaken conflation of statutory concepts. Although the

Service found that Unit 1 does not yet contain all of the

biological and physical features associated with occu-

pied “critical habitat,” the absence of those features

does not mean that Unit 1 does not qualify as “habitat.”

Rather, it simply means that reasonable restoration

would be needed, consistent with the Act’s understand-

ing that “conservation” may require habitat improve-

ments to promote a species’ recovery. Moreover, the

Service's finding that Unit 1 contains “habitat” accords

with the Service’s longstanding, common-sense inter-

pretation, which reflects the best understanding of the

statutory term and, at the very least, merits deference.

B. The Service also properly determined that Unit |

is an “area” unoccupied by the frog that is “essential for

|its] conservation.” 16 U.S.C. 1532(5)(A)(ii). The Ser-

vice found that Unit 1 not only contains the frog’s rare

breeding habitat, but the best such habitat within the

frog’s entire historical range. Unit 1 would also provide

protection from extinction in the event that the few re-

maining populations, clustered in two Mississippi coun-

ties, were extirpated through drought, disease, or an-

other localized event. Moreover, Unit 1 could be re-

stored with “reasonable effort,” distinguishing it from

other historically occupied sites where such restoration

is not readily feasible.

II. The Service’s decision not to exercise its discre-

tionary authority to exclude Unit 1 from critical habitat

on economic-impact grounds is unreviewable under

5 U.S.C. 701(a)(2) because it is committed to agency dis-

cretion by law. The first sentence of Section 4(b)(2),

mandating that the Service “takje] into consideration”

the “economic impact” of a designation, establishes a ju-

dicially enforceable requirement. 16 U.S.C. 1533(b)(2).

By contrast, the second sentence provides only that the

Service “may” exclude an area from critical habitat if it

finds the benefits of exclusion outweigh those of inclu-

sion. /bid. And although the statute specifies that the

Service may not exclude an area from critical habitat if

it would lead to the species’ extinction, it does not pro-

vide standards for determining when the Service should

or must exclude it. The statute thus provides no mean-

ingful standard against which to judge the agency’s ex-

ercise of discretion.

ARGUMENT

lL. THE SERVICE PROPERLY DESIGNATED UNIT 1 AS

UNOCCUPIED CRITICAL HABITAT

The Service’s designation of Unit 1 as unoccupied

critical habitat must be upheld unless it is found to be

“arbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law.” 5 U.S.C. 706(2)(A).

There is no basis to set aside the Service’s designation

under that standard.

A. Unit 1 Contains “Habitat” For The Dusky Gopher Frog

In the court of appeals, petitioner argued that Unit 1

could not be unoccupied critical habitat on the theory

that it is not “essential for the conservation of the spe-

cies” under the definition in Section 3(5)(A)(ii) of the Act,

16 U.S.C. 1582(5)(A\(ii). See Pet. C.A. Br. 19-21, 27-41.

In this Court, however, petitioner now argues (Pet. Br.

19, 22-23; see Markle Br. 26-27) that the designation is

inconsistent with Section 4(a)(3)(A)(i), which directs the

Service to “designate any habitat of such species which

is then considered to be critical habitat.” 16 U.S.C.

1533(a)(3)(A)(i). Observing that the Act contemplates

that a species’ “critical habitat” is part of its “habitat,”

petitioner argues that Unit 1 cannot be critical habitat

“as a matter of law” because, it asserts, Unit 1 is not

“habitat” in the first instance. Pet. Br. 19. That asser-

tion rests on mistaken premises about the factual record

and the meanings of “habitat” and “critical habitat” un-

der the Act.

1. The Service found that Unit | contains “habitat” for

the dusky gopher frog

The Service’s final designation of Unit 1 found it to

contain “habitat” for the dusky gopher frog.

a. As noted, see pp. 9-10, supra, Unit 1 was identified

after peer reviewers criticized the initial proposed desig-

nation as inadequate. The Service then “look|ed] within

the species’ historic range outside the state of Missis-

sippi for additional habitat for the designation.” J.A. 124.

One reviewer, Dr. Pechmann, alerted the Service to

“{t]he pond where Rana sevosa was last documented in

Louisiana” and “[ajnother pond located nearby.” J.A. 14.

Dr. Pechmann noted that these ponds “retain|ed] the re-

quired characteristics necessary to serve as a breeding

pond.” Ibid. And with respect to the frog’s “terrestrial

habitat,” Dr. Pechmann advised that the upland area “re-

tains some stump holes” in which frogs could live and ob-

served that the uplands “could be restored” to meet the

Service's conservation standards. /bid.

The Service performed a “habitat assessment” of

Unit 1. J.A. 160; ef. J.A. 123 (“During the process of de-

lineating critical habitat, the Service assesses habitat to

determine if it is essential for the conservation of a listed

species.”). The Service concluded that the five ponds in

Unit | “provide breeding habitat that in its totality is not

known to be present elsewhere within the historic range

of the dusky gopher frog.” J.A. 125. The isolated,

ephemeral ponds were “intact and of remarkable qual-

ity,” J.A. 160, and “similar in appearance (water clarity,

depth, vegetation) to ponds in Mississippi used for breed-

ing,” ibid.

The Service also found that Unit | contained “terres-

trial habitat” in which adult frogs could live. J.A. 160.

Field notes of one Service official reflected observations

of various “[s}tumps” in the “uplands” surrounding

the ephemeral ponds, some which were “lone] foot to

10 injches|” and “others smaller,” as well as “stumps /

root mounds surrounding thie] pond basin” at “Dry

Pond.” A.R. 3080. Dr. Pechmann’s notes similarly re-

flected “lots of stumps” near various ponds and a “good

gopher frog hole” near Dry Pond. A.R. 3099-3100; see

J.A. 18; A.R. 6744,

The Service noted that this “terrestrial habitat” was

of “poor quality,” J.A. 160; see A.R. 3080 (“would prob.

need to create more frog refugia”), but concluded that

those uplands were “restorable with reasonable effort,”

J.A. 167. Such restoration would “improve [the] habitat

for the dusky gopher frog” at Unit | so as to attain stand-

ards for the frog’s long-term conservation. J.A. 123 (em-

phasis added); see J.A. 167 (noting that “the uplands as-

sociated with the ponds do not currently contain the es-

sential physical or biological features of critical habitat”)

(emphasis added). And as Dr. Pechmann noted, even

without improvements, Unit | already “containjed| the

best gopher frog habitat remaining in Louisiana, to |his|

knowledge.” J.A. 53 (emphasis added).

In finding Unit 1 to be habitat, the Service also ob-

served that the frog had previously inhabited the area.

Unit | contained “at least two historic breeding ponds for

the dusky gopher frog,” J.A. 124, and the last sighting of

the frog anywhere outside Mississippi had occurred at

Unit 1, J.A. 167. And Unit 1's ponds—unlike other wet-

lands throughout the frog’s historical range—today re-

main “intact and of remarkable quality.” J.A. 160.

The Service's designation of Unit 1 as unoccupied crit-

ical habitat thus subsumed a determination that Unit |

contained, albeit with varying degrees of quality, the

basic elements of “habitat” required during the dusky

gopher frog’s life cycle. Indeed, petitioner and Markle

did not contend otherwise in their comments during the

rulemaking process, see A.R. 1825-1839, 1692-1711; p. 25

n.5, infra, and they disclaimed any attempt to “challenge

any of the[] [Service's] premises as a factual matter” on

judicial review, Pet. C.A. Br. 36.

b. Petitioner asserts that “li)f dusky gopher frogs

were moved to Unit 1, they would not survive.” Pet. Br.

25; see id. at 19, 35, 43 (similar). But petitioner does not

dispute any of the facts just described. Petitioner does

not contend, for example, that Unit | lacks isolated

ephemeral ponds in which the frog could breed or forests

with stump holes in which adult frogs could live. Rather,

petitioner’s assertion rests solely on a presumed absence

of any “{|dispute{}” that “the frog cannot live in Unit 1.”

Id. at 19.

Petitioner’s assertion is mistaken. It is true that the

Service found that “the uplands associated with the

ponds” at Unit 1 do not “currently contain the essential

physical or biological features of critical habitat.” J.A.

167 (emphasis added). But that finding does not mean

that the dusky gopher frog “would immediately die if

moved” to Unit 1. Pet. Br. 28. Rather, it simply means

that the upland habitat is of relatively poor quality and

would require some restoration as part of long-term con-

servation efforts.*

2. Under the Act, an area may be “habitat” even if it

does not satisfy the standards for “occupied” “critical

habitat”

What the Service's findings illustrate—and what pe-

Litioner’s argument erroneously elides——is the distinc

tion under the Act between “habitat” and “occupied”

“critical habitat.”

* Petitioner’s assertion that “(i}t is undisputed” that “the frog can-

not live in Unit 1” (Pet. Br. 19; see also id. at 24-25) mischaracterizes

the government's position. The government has consistently ar

gued that Unit | contains habitat for the frog. See, ¢.g., Gov't Br. in

Opp. 23 (observing that “the Service never concluded that Unit | is

not ‘habitat’ or is ‘uninhabitable’ by the frog,” and noting that peti

tioner was “mistaken |” in “declaring it ‘undisputed’ that Unit | is

not ‘habitat’”) (citation omitted); Gov't C.A. Br. 29, 32 (explaining

that “the Service found that the uniquely valuable ephemeral ponds

found on Unit | constituted habitat that is essential to the conserva

tion of the frog,” and disputing assertion that “Unit | is ‘unsuitable’

as habitat”); D. Ct. Doe. 91-1, at 1 & n.1, 15 (Feb. 21, 2014) (arguing

that petitioner’s suggestion that “Unit | is ‘not actually habitat at

all” was “baseless,” because Unit | contains both “the best frog

breeding habitat, in its totality, in the species’ range” and “under-

ground refugia that would allow for survival”) (citation omitted).

Section 4 of the Act directs the Service, “to the maxi-

mum extent prudent and determinable,” to promulgate a

regulation that “designate|s| any habitat of such species

which is then considered to be critical habitat.” 16 U.S.C.

1533(a)(3)(A)\(i) (emphasis added). The Act thereby con-

that a species’ “critical habitat” is part of its

“habitat.” But Section 4 provides no further guidance as

to what areas of “habitat” are of sufficient value or im-

portance to the species that they are “considered to be

critical.”

That guidance is instead provided in Section 3 of the

Act, which defines “critical habitat.” Section 3(5)(A)(i)

provides that a species’ “occupied” habitat is “critical” if

it contains “physical or biological features (1) essential to

the conservation of the species and (11) which may re-

quire special management considerations or protection.”

16 U.S.C. 1582(5)(A\(i). At relevant times, the Service's

regulations described this set of features in terms of the

“|plrimary constituent elements” (PCEs) of critical hab-

itat. 50 C.F.R. 424.12(b) (2012). These are elements that

the Service has found essential to achieving a species’

“conservation,” including its ultimate recovery. See ibid.

The PCEs do not, however, define requirements for

“habitat” itself. The statutory text on which the PCEs

are based——“physical or biological features * * * easen-

Act's definition of “occupied” “critical habitat,” not in any

definition of “habitat.” As acknowledges,

“critical habitat’ |is| a subset of ‘habitat of such species,’”

Pet. Br. 3 (emphasis added), and “Congress envisioned

critical habitat to be at most coextensive with, and almost

always narrower than, all habitable areas,” id. at 26. In-

deed, the Act provides that occupied critical habitat con-

sists of “specific areas within the geographical area oc-

cupied by the species” that possess the requisite biologi-

cal and physical features. 16 U.S.C. 1582(5)(A)(i) (em-

phasis added); see also 16 U.S.C. 1532(5)(C). If, however,

a species’ “habitat” were itself required to contain all of

the same biological and physical features necessary to

constitute occupied critical habitat, a species’ “habitat”

would automatically qualify as “critical habitat” so long

as it was occupied. The definition of occupied “critical

habitat” would then be redundant with occupied “habi-

tat,” in contravention of basic principles of statutory in-

terpretation. See Rubin v. Islamic Republic of Iran,

138 S. Ct. 816, 824 (2018).

The Service's final designation in this case reflects the

understanding that the PCKEs are criteria of occupied

critical habitat that are directed at conservation of the

entire species, not minimal requirements for “habitat”

for members of the species. As petitioner notes, PCE 2

contemplates that the uplands would be “maintained by

fires frequent enough to support an open canopy and

abundant herbaceous ground cover.” Pet. Br. 2; see id.

at 12, 25, 27. But the Service identified such “frequent

fires” as a feature of “|o|ptimal habitat,” not of “habitat”

itself. J.A. 145 (emphasis added); see also Recovery Plan

iv (defining “lo|ptimal post-larval dusky gopher frog

habitat” as “uplands dominated by fire maintained long-

leaf pine”) (emphasis added).

3. The Service's understanding that Unit | is “habitat”

reflects the best reading of the statute and, at a

minimum, warrants deference

Because the arguments petitioner now makes con-

cerning the meaning of “habitat” were not presented to

the Service during the rulemaking, the Service's final

designation did not have occasion to address them."

Nonetheless, the conclusion that Unit 1 contains “habi-

tat” accords with both common sense and the Service's

longstanding interpretation. Petitioner's contrary argu-

ments are without merit.

a. Section 4 of the Act generally directs the Service to

“designate any habitat of such species which is then con-

sidered to be critical habitat.” 16 U.S.C. 1583(a)(3)(A)(i)

(emphasis added). Although the Act expressly defines

“eritical habitat,” see 16 U.S.C. 1532(5)(A)(i)-(ii), it does

not define “habitat” itself. Instead, Congress left inter-

pretation of that term for the Service in its implementa-

tion of the Act.

In lieu of formulating a single, bright-line definition

of “habitat” to apply across all of the disparate species

and settings to which the Act applies— including not only

animals (both vertebrates and invertebrates) but also

plants; not only terrestrial species but also aquatic spe-

cies; not only stationary species but also migratory

ones——the Service has developed its understanding of

“habitat” through case-by-case application. And through

critical-habitat designations for individual species, the

* Plaintiffs focused their comments on the assertion that Unit |

failed to possess the PCE, not that it was not “habitat”

See A.R. 1826 (petitioner's comment letter) (asserting that Unit 1 “is

not ‘essential’ to the conservation of the |dusky gopher frog |” because

it “eontains none of the primary constituent elements” and will likely

“continue to become less favorable habitat over the foreseeable fu.

ture”) (emphasis added), A.R. 133 (“In conclusion, it does not pres-

ently appear that | Unit) 1 contains any of the three PCEs to qualify

for consideration as critical habitat.”) (emphasis added), AR. 1701

(Markle et al comment letter) (asserting that Unit | “fails to meet

the statutory criteria” because it “contains none of the primary con

stituent elements” and “is not ‘essential’ to the conservation of the

[dusky gopher frog”).

Service has made clear that a species’ “habitat” is not

limited to areas that simultaneously provide optimal con-

ditions for every stage of a species’ life cycle.

First, an area may qualify as “habitat” even if it does

not contain every single element necessary for a species’

survival. For example, a wetland area may serve as

“habitat for migratory birds,” Selid Waste Agency of

N. Cook Cnty. v. United States Army Corps of Eng'rs,

531 U.S. 159, 172 (2001) (SWANCC), even if they spend

only part of their lives there. Even species that do not

migrate great distances may nonetheless require several!

distinet “habitat|s|” during their life; many amphibians,

for example, require aquatic habitat as juveniles and ter-

restrial habitat as adults. The Service thus understands

the phrase “any habitat” to encompass each of the vari-

ous habitats required by a species during its life cycle.

See, ¢.g., 82 Fed. Reg. 39,160, 39,218 (2017) (noting dis-

Linet “spawning habitat” and “nursery and foraging hab-

itat” of Atlantic sturgeon); 79 Fed. Reg. 69,312, 69,323

(2014) (identifying “seasonally specifie PCEs” for Gun-

nison sage-grouse and noting “few areas would contain

all” PCEs); accord J.A. 125 (referring to “breeding hab-

itat” of dusky gopher frog); ef. Home Builders Asa'n v.

United States Fish & Wildlife Serv., 616 F.3d 983, 9RS

(9th Cir. 2010) (When “the elements necessary to species

survival are present in distinct areas,” there is “simply

no reason that |all| elements essential for the conserva-

Lion of a species need be present in the same area.”), cert.

denied, 562 U.S. 1217 (2011).

Second, an area may be “habitat” even if it is poor qual-

ity or “degraded.” See 73 Fed. Reg. 61,936, 61,988 (2008)

(referring to “degraded habitat” that would “support

unsustainable populations” of San Bernardino kangaroo

rat, but would “not contribute to [its] recovery”), vacated

on other grounds by Center for Biological Diversity v.

United States Fish & Wildlife Serv., No. 09-cv-90, 2011

WL 73494 (C.D. Cal. Jan. 8, 2011); 56 Fed. Reg. 40,002,

40,007 (1991) (referring to “poor-quality habitat” for

northern spotted owl); accord J.A. 160 (referring to up-

lands on Unit 1 as “poor quality terrestrial habitat”). Sim-

ilarly, a species’ “habitat” may include “marginal” areas

that are not consistently inhabited or that would primarily

be useful to help a species recover from a catastrophic

event. See, e.g., 73 Fed. Reg. at 61,962 (designating “mar-

ginal habitat” as critical habitat for San Bernardino kan-

garoo rat); 67 Fed. Reg. 40,790, 40,793 (2002) (contrasting

“marginal” habitat with “stable aquatic habitats” for Chiri-

cahua leopard frog).

Relatedly, habitat remains “habitat” even if it would

require human intervention (such as restoration) to be-

come optimal for a species’ long-term conservation. See

78 Fed. Reg. 8746, 8758 (2013) (designating, as unoccu-

pied critical habitat for tidewater goby, habitat areas in

which “some form of restoration will be necessary”);

J.A. 154 (noting that even “occupied” areas may require

management to “maintain or restore the PCEs”); cf. Pet.

App. 108a n.28 (agreeing that “it does not make sense”

to limit designations of critical habitat to “only those ar-

eas that contain optimal conditions for the species”).

Third, in appropriate circumstances, a species’ “habi-

tat” may include not only the area where a species is

found, but also parts of the surrounding area that pro-

vide elements necessary to maintain the species. See,

e.g., Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977,

993-994 (9th Cir. 2015) (upholding designation of sub-unit

of critical habitat for Santa Ana sucker that provides

coarse sediment for spawning elsewhere in unit), cert. de-

nied, 136 S. Ct. 799 (2016); cf. Pet. C.A. Br. 29-30 (agreeing

that the Service “rationally explain[ed]” in Bear Valley

why that sub-unit “was essential”); see also 81 Fed. Reg.

59,046, 59,064 (2016) (designating adjacent upland areas

that provide necessary water quality for yellow-legged

frog); 78 Fed. Reg. 10,450, 10,458 (2013) (designating up-

stream areas that provide necessary sediment for

Coachella valley milkvetch).

b. The Service’s interpretation of “habitat” reflects

the best reading of the Act. In construing statutory text,

this Court “look[s] to both ‘the language itself [and] the

specific context in which that language is used.’” Merit

Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883,

893 (2018) (quoting Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997)) (second set of brackets in original).

Here, “habitat” must be interpreted in light of the closely

related term “critical habitat.” Critical habitat is a sub-

set of habitat and is statutorily defined to include both

“areas within the geographical area occupied by the spe-

cies” and “areas outside the geographical area occupied

by the species.” 16 U.S.C. 1532(5)(A)(i)-(ii) (emphasis

added). The Act further identifies those subsets of criti-

cal habitat by reference either to “physical or biological

features” (for occupied critical habitat), or to “areas” (for

unoccupied critical habitat), which are found to be “es-

sential” for “conservation of the species.” /bid. Given

those definitions, the conclusion readily follows that an

“area” may qualify as “habitat” even if it is “outside the

geographical area occupied by the species,” and even if it

does not currently contain the “physical or biological fea-

tures” of occupied critical habitat. See pp. 23-24, supra.

Moreover, Section 4 of the Act makes “any habitat”

of the species eligible to be considered as critical habitat.

16 U.S.C. 1533(a)(3)(A)() (emphasis added). “Read nat-

urally, the word ‘any’ has an expansive meaning, that is,

‘one ¢ > some indiscriminately of whatever kind.’” United

States v. Gonzales, 520 U.S. 1, 5 (1997) (citation omitted).

The phrase “any habitat” thus supports the conclusion

that a species may have multiple types of “habitat,” and

an area may constitute “habitat” even if it does not meet

all of the species’ needs across its entire life cycle.

That a species may require multiple “habitat|s|” or

types of “habitat” also accords with common usage. For

example, this Court and other courts have frequently

used the term “habitat” to describe areas that a species

uses only seasonally or for one purpose, even though it

does not contain every feature necessary for a species’

existence. See, e.g., Murr v. Wisconsin, 137 S. Ct. 1933,

1955 (2017) (Roberts, C.J., dissenting) (“nesting habitat”

for turtles); SWANCC, 531 U.S. at 172 (“habitat for mi-

gratory birds”); Marsh v. Oregon Nat. Res. Council,

490 U.S. 360, 367 (1989) (“spawning habitat” for fish);

Baldwin v. Fish & Game Comm’n, 436 U.S. 371, 376

(1978) (“winter habitat” for elk); Oregon Nat. Res. Coun-

cil v. Allen, 476 F.3d 1031, 1034 n.4 (9th Cir. 2007) (“dis-

persal habitat” that was “marginal or unsuitable for

nesting, roosting or foraging”). Similarly, Congress has

used the term “habitat” in other conservation statutes to

refer to areas that may not include all elements neces-

sary for survival throughout all life stages. See, e.g.,

16 U.S.C. 6602(2), 6603(b)(1)(A) (“nesting habitats” of

marine turtles); 16 U.S.C. 3501(a)(1)(B) (“habitats which

are essential spawning, nursery, nesting, and feeding ar-

eas”); 16 U.S.C. 1440(b)(1)(B) (authorizing Secretary to

“enhance degraded habitats”).

It is also conventional to use “habitat” to refer to an

area that would support one of a species’ life functions

even if it is no longer naturally accessible. For example,

Congress has authorized the Secretary to “promote ac-

cess to blocked *** habitats” for fish spawning.

16 U.S.C. 460ss-1(b)(2)(B)(i). As a result, many salmon

now access their spawning habitat using fish ladders, and

juveniles may then be transporved downstream on

barges or trucks. See, e.g., Wild Fish Conservancy v.

Salazar, F.3d 513, 520 (9th Cir. 2010). These usages

show that the term “habitat” is not inherently confined

to areas “accessible to the species” without any human

intervention. Markle Br. 27.

In addition, the Service’s understanding that even

poor-quality habitat is nonetheless “habitat” is sup-

ported by the Act’s definition of “conservation.” Conser-

vation includes “the use of all methods and procedures”

calculated to achieve a species’ recovery from endan-

gered or threatened status, including but not limited to

“activities associated with scientific resources manage-

ment” such as “habitat * * * maintenance” and “trans-

plantation.” 16 U.S.C. 1532(3). If an area had to contain

optimal conditions before it could even qualify as “habi-

tat,” the Act’s contemplation that habitat may need res-

toration for recovery of the species would have little

meaning.

Finally, the Service’s interpretation of “habitat” is

consistent with the Act’s expressly stated purposes.

Congress intended the Act to “provide a means whereby

the ecosystems upon which endangered species and

threatened species depend may be conserved.” 16 U.S.C.

1531(b).° Congress considered the “destruction of criti-

* This Court has looked to the Act’s stated purposes and support-

ing legislative record in interpreting other provisions. See, ¢.g.,

Babbitt v. Sweet Home Chapter of Communities for a Great Or.,

cal habitat” to be the “most significant” threat to conser-

vation of species, H.R. Rep. No. 412, 93d Cong., Ist Sess.

5 (1973) (1973 House Report), and the “intent and pur-

pose” of the Act was to ensure the government’s ability

to protect areas needed for conservation, ibid.; see also

1978 House Report 5. Those purposes are furthered by

an interpretation of “habitat” that accounts for varying

kinds of habitat and degrees of habitat quality and the

common-sense proposition that a species may be endan-

gered or threatened precisely because of an absence of

optimal habitat. See 16 U.S.C. 1533(a)(1)(A) (identifying

“present or threatened destruction, modification, or cur-

tailment of its habitat” as a “factor{]” justifying listing a

species).

c. Ata minimum, the Service’s interpretation of “hab-

itat” is reasonable and entitled to deference. “When it en-

acted the ESA, Congress delegated broad administrative

and interpretive power to the Secretary.” Babbitt v.

Sweet Home Chapter of Communities for a Great Or.,

515 U.S. 687, 708 (1995) (Sweet Home). As this Court has

recognized, the protection of endangered and threatened

species “requires an expertise and attention to detail that

exceeds the normal province of Congress,” ibid., and the

proper interpretation of its terms presents “complex pol-

icy choice[s],” ibid. Accordingly, this Court has recog-

nized that the Service’s interpretation of the Act is enti-

tled to deference under Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), so

long as it “rests on a permissible construction of the

515 U.S. 687, 698-699 (1995) (upholding interpretation of “take” as

including habitat modification because it furthered Act’s “central

purposes”); Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174 (1978)

(legislative record “indicate[d] beyond doubt that Congress in-

tended endangered species to be afforded the highest of priorities”).

ESA.” Sweet Home, 515 U.S. at 704. For the reasons dis-

cussed above, the Service’s understanding of “habitat” is,

at a minimum, reasonable and entitled to deference.

d. Petitioner’s principal argument to the contrary

(Br. 21-29) is that Unit 1 is not “habitable” because it

does not currently contain the three PCEs that the Ser-

vice has identified as essential for “conservation” of the

dusky gopher frog. As explained above, however, that

argument erroneously conflates the heightened stand-

ard for occupied critical habitat—which the Service has

defined in terms of PCEs—with the baseline to qualify

as habitat.

In support of its unduly narrow interpretation, peti-

tioner also relies upon certain dictionary definitions that

define “habitat” in reference to a species’ actual or usual

occupancy. See, e.g., American Heritage Dictionary 586

(2d ed. 1982) (“area or type of environment in which an

organism or biological population normally lives or oc-

curs”); Webster’s Third New International Dictionary

1017 (1976) (Webster’s Third) (“place where a plant or

animal species naturally lives and grows”). But this

Court has recognized that “[w]|hether a statutory term is

unambiguous *** does not turn solely on dictionary

definitions,” Yates v. United States, 135 S. Ct. 1074, 1081

(2015), in part because they fail to account for “the spe-

cifie context in which that language is used,” id. at 1082

(quoting Robinson, 519 U.S. at 341). Here, the Act ex-

pressly provides that an area may form part of a species’

“critical habitat” (and therefore necessarily part of its

“habitat”) even though it is “outside the geographical

area occupied by the species.” 16 U.S.C. 1532(5)(A)(ii).

In any event, dictionary definitions confirm that “hab-

itat” does not have one single, indisputable meaning.

“Habitat” is “[s}jometimes applied to the geographical

area over which [a plant or animal] extends, or the spe-

cial locality to which it is confined,” or “to the particular

station or spot in which a specimen is found.” Ozford

English Dictionary 995 (2d ed. 1989). But other times it

“jndicate[s] the kind of locality, as the sea-shore, rocky

cliffs, chalk hills, or the like.” bid. See also, e.g., Web-

ster’s Third 1017 (“the kind of site or region with respect

to physical features (as soil, weather, elevation) naturally

or normally preferred by a biological species”) (emphasis

added); Random House College Dictionary 591 (1980)

(“1. the native environment of an animal or plant; the

kind of place that is natural for the life and growth of an

animal or plant.”). The latter definitions readily encom-

pass the Service’s application of the term “habitat” here.

B. Unit 1 Is “Essential For The Conservation Of The

Species”

Petitioner also renews its challenge (Pet. Br. 19-20,

27; see Markle Br. 28-31) to the Service’s determination

that Unit 1 is “essential for the conservation of” the

dusky gopher frog, 16 U.S.C. 1532(5)(A)(ii). That chal-

lenge is similarly without merit.

As noted (pp. 2-3, supra), the Act establishes distinct

standards for occupied and unoccupied critical habitat.

“{O]ecupied” critical habitat consists of specific areas

that contain “those physical or biological features” that

are “essential to the conservation of the species” and

“which may require special management considerations

or protection.” 16 U.S.C. 1532(5)(A)(i). So long as an oc-

cupied area contains those features, it may properly be

designated as “critical habitat” without regard to other

criteria, such as the area’s relative importance within

overall conservation efforts.

Unoccupied critica) habitat is defined differently. In-

stead of depending upon the presence of features on lands

that may otherwise be fungible, unoccupied critical habi-

tat includes only “areas” that themselves are found to be

“essential for the conservation of the species.” 16 U.S.C.

1532(5)(A)(ii). The Service’s determination that a partic-

ular area meets that standard is of course informed by its

particular characteristics, such as the presence of rare

and valuable elements like the ephemeral ponds on Unit

1. But the test for unoccupied critical habitat ultimately

requires an assessment that the area itself is “essential!”

for the overall conservation of the species.

I. The Service properly determined that Unit I is

essential for the dusky gopher frog's recovery

The Service’s findings about Unit 1 and the conserva-

tion needs of the dusky gopher frog, taken together, am-

ply support the Service’s determination that Unit 1 is

“essential for the conservation of the species.” 16 U.S.C.

1532(5)(A)(ii).

a. First, the Service found—and petitioner does not

contest—that a critical-habitat designation limited to the

frog’s current range would be “inadequate for [its] con-

servation.” J.A. 124; see 50 C.F.R. 424.12(e) (2012) (re-

quiring this threshold finding). When the frog was listed

as endangered in 2001, its extant population was “only

100 adult frogs at a single site.” 66 Fed. Reg. at 62,995.

That site—Glen’s Pond—continues to contain the only

“stable” frog population. Recovery Plan 7. Even there,

the frog remains vulnerable to potential extirpation by

localized disasters, droughts, or disease, such as “newly

discovered fungi that have been devastating to juvenile

amphibians.” J.A. 46; see J.A. 157 (explaining that “pop-

ulation sizes are extremely small and at risk of extirpa-

tion and extinction from stochastic events”). For this

reason, peer reviewers advised that “| pjotential PR. sevosa

translocation sites must be spread out over as wide a ge-

ographic area as possible.” J.A. 13. The Service found

that designating Unit 1 as critical habitat would protect

against those risks. As petitioner itself notes, “Unit | is

50 miles from where the frog [currently] lives.” Pet. Br.

14. If sites in Mississippi were “negatively affected by

environmental threats or catastrophic events,” Unit |

would provide “a refuge for the frog.” J.A. 125-126.

Second, Unit 1 provides “[bjreeding habitat for the

dusky gopher frog in a landscape where the rarity of that

habitat is a primary threat to the species.” J.A. 126. Of

the various habitats required for the frog’s survival and

recovery, none is more rare or “difficult to establish”

than its breeding habitat. J.A. 122; see J.A. 125 (identi-

fying absence of breeding habitat as “a limiting factor in

dusky gopher frog recovery”). Yet Unit 1 not only re-

tains isolated ephemeral ponds that could serve (and pre-

viously served) as breeding sites; the ponds also “are in

close proximity to each other.” J.A. 125. The ponds thus

could support a “metapopulation structure,” ie., “neigh-

boring local populations close enough to one another that

dispersing individuals could be exchanged (gene flow) at

least once per generation.” J.A. 147-148. Such inter-

breeding promotes “[gjenetic variation and diversity,”

which is “essential for recovery, adaptation to environ-

mental changes, and long-term viability.” J.A. 148; see

Recovery Plan 33-34 (identifying establishment of “met-

apopulation in * * * Louisiana” as precondition for

“downlisting” from endangered status).

Third, the Service found that Unit 1 was unique within

the frog’s historical range. Upon reviewing the “best sci-

entific information available,” the Service found that “the

five ponds in Unit 1 provide breeding habitat that in its

totality is not known to be present elsewhere within the

historic range of the dusky gopher frog.” J.A. 125; see

J.A. 160 (ponds were unmatched “in any of the areas of

historical occurrence that [the Service] searched in Mis-

sissippi”); J.A. 53 (opinion of Dr. Pechmann).

Finally, the Service found that, although Unit 1 did

not currently meet all three PCEs, it could attain them

“with reasonable effort.” J.A. 167." That distinguished

Unit | from other, historically occupied sites where res-

toration would not be readily feasible. See, e.g., J.A. 127

(noting that “[t}he upland terrestrial habitat” at the last

occupied site in Alabama “has been destroyed and re-

placed by a residential development”). And the Service

noted that, although conservation efforts at Unit 1 would

require cooperation by present or future landowners,

various programs and funding sources may aid in secur-

ing that cooperation. J.A. 125.

That constellation of findings readily satisfies the “es-

sential for * * * conservation” standard under any rea-

sonable interpretation. Unit 1 was previously occupied

by the dusky gopher frog and continues to contain the

best remaining breeding habitat anywhere within its his-

torical range. The Service properly determined that if the

frog is to be successfully “conservied|”—that is, brought

to the “point at which the measures provided pursuant to

[the Act] are no longer necessary,” 16 U.S.C. 1532(3)—it

is essential to protect that habitat from destruction. And

" Petitioner asserts that restoration would involve “rip{ping} out

[its] loblolly forests, terminat{ing] [its] century-le z timber opera-

ions, [and] plant{ing] and growing] longleaf pines.” Pet. Br. 37. The

Service nowhere indicated that such a wholesale transformation

would be called for. Rather, it believed the uplands to “be restorable

with reasonable effort.” J.A. 167; see also 76 Fed. Reg. at 59,783

(same). Restoration could include, for example, creating additional

holes or stumps as “frog refugia.” A.R. 3080 (field notes).

when an agency’s judgment rests on “scientific determi-

nation|s]” as to matters within its expertise, “a reviewing

court must generally be at its most deferential.” Balti-

more Gas & Elec. Co. v. National Res. Def. Council, Inc.,

462 U.S. 87, 103 (1983).

b. Petitioner’s various arguments to the contrary are

without merit. Petitioner principally argues—contrary

to its position below*—that an unoccupied area cannot be

“essential” to “conservation” unless it simultaneously

contains all of the “primary constituent elements”

(PCEs) identified by the Service. Pet. Br. 27 (citation

omitted); see Markle Br. 29. As the Service explained,

however, see J.A. 121, the Act’s text does not support

that argument.

Section 3 of the Act makes the existence of specific

“physical or biological features” a requirement for occu-

pied critical habitat, but it omits that requirement from

the immediately following definition of unoccupied criti-

cal habitat. See 16 U.S.C. 1532(5)(A)(ii). “Congress gen-

erally acts intentionally when it uses particular language

in one section of a statute but omits it in another.”

Department of Homeland Sec. v. MacLean, 135 8S. Ct.

913, 919 (2015). This contrast in the definitions of the two

types of critical habitat supports the conclusion that an

unoccupied area may be “essential” even if it currently

lacks all features of the species’ occupied critical habitat.

See, eg., J.A. 122 (“(Ty}he presence of the PCEs is not a

necessary element for this determination [of unoccupied

critical habitat].”). Similarly, the requirement that an

area be “essential for the conservation of the species”

contemplates the possibility that reasonable restoration

* Petitioner previously acknowledged that “it is not strictly neces-

sary that every [unoccupied | area designated as critical habitat con-

tain all essential habitat elements.” Pet. C.A. Br. 28

might be necessary. See 16 U.S.C. 1532(3) (defining

“conservation” to include “all methods and procedures

which are necessary” to assist in species’ recovery).

At the very least, the Service’s interpretation that an

unoccupied area may be “essential” even if it does not

contain all of the PCEs associated with occupied critical

habitat is reasonable and entitled to deference. As with

“habitat,” the Act does not define the term “essential.”

16 U.S.C. 1532(5)(A)(ii). Congress thus entrusted to the

Service’s judgment the task of reasonably interpreting

and applying that standard. See Cuozzo Speed Techs.,

LLC v. Lee, 136 8. Ct. 2131, 2142 (2016) (“[Whhere a stat-

ute leaves a ‘gap’ or is ‘ambigulous],’ we typically inter-

pret it as granting the agency leeway to enact rules that

are reasonable in light of the text, nature, and purpose of

the statute.”) (citation omitted; second set of brackets in

original).

Petitioner also suggests (Br. 44-45) that Unit 1 cannot

be deemed essential because, in light of its and other

landowners’ current opposition, the designation may not

yield an immediate conservation benefit. But the Act

does not contemplate that private landowners may veto

a designation of critical habitat, nor demand proof of

when or whether conservation efforts will ultimately suc-

ceed. Just as a lifeboat may provide “essential” protec-

tion to passengers even if it is not ultimately used, so too

can Unit 1 provide “essential” protection against extinc-

tion in the event of localized disasters in other areas.

Petitioner’s reliance on legislative history (Pet. Br. 8-

10, 31-32; see Markle Br. 21-22, 32-35) similarly fails. As

petitioner notes, the Act did not originally define the

term “critical habitat.” The Service issued a regulation

defining it to include areas “the loss of which would ap-

preciably decrease the likelihood of the survival and re-

covery of a listed species,” as well as “additional areas

for reasonable population expansion.” 43 Fed. Reg. 870,

874-875 (1978). In 1978, Congress enacted the current

definition of “critical habitat.” In so doing, however,

Congress ultimately rejected language that would have

permitted designation of unoccupied areas only if “the

species can be expected to expand naturally” tc those ar-

eas, A Legislative History of the Endangered Species

Act of 1973: Senate Comm. on Environment and Public

Works, 97th Cong., 2d Sess. 1169-1170 (1982) (quoting

S. 2899, 95th Cong., 2d Sess. § 2 (as passed by the Senate,

July 19, 1978)), or that would have excluded certain

“marginal habitat” from eligibility, id. at 879-881 (quot-

ing H.R. 14104, 95th Cong., 2d Sess. § 5 (as amended and

passed by the House, Oct. 14, 1978)). Moreover, by fram-

ing its ultimate definition of “critical habitat” in terms of

what is essential for “the conservation of the species,”

16 U.S.C. 1532(5)(A)(i)-(iil) (emphasis added), Congress

demonstrated its understanding that critical habitat

would include not only areas necessary for survival, but

also those necessary to recover a species from endan-

gered status.

Petitioner mistakenly contends (Br. 35-39) that im-

posing atextual constraints upon the Act’s definition of

unoccupied critical habitat is necessary to ensure mean-

ingful limits on the Service’s authority. But such limits

are furnished by the statutory requirements that the

Service reasonably find that a specific area is “essential,”

16 U.S.C. 1532(5)(A)(ii), and that it do so using the “best

scientific data available,” 16 U.S.C. 1533(b)(2). Indeed,

the court of appeals upheld the Service’s designation

only because, “in this case, substantial, consensus, scien-

tifie evidence in the record supports the Service’s conclu-

sion” that Unit 1 was essential for the frog’s recovery.

Pet. App. 30a n.20.

Petitioner’s assertion that the test for unoccupied

critical habitat is “more stringent” than that for occupied

critical habitat, Pet. Br. 36 (citation omitted); see Markle

Br. 30-31, is consistent wit}. this understanding. As ex-

plained above, to designate an area as occupied critica!

habitat, the Service need only show that the area con-

tains at least one of the “physical or biological features”

that are “essential” to the species. Home Builders Ass'n,

616 F.3d at 988-989. For unoccupied critical habitat, by

contrast, the Service must determine that the area itself

is “essential.” 16 US.C. 1532(5)(A)(ii). In practice, it will

generally be easier to show that an area has a particular

feature than to show that the area itself is, for example,

unusually well suited to satisfy an essential conservation

need.

The fact that this standard is difficult to satisfy, how-

ever, does not mean that it is impossible. Here, the Ser-

vice determined, based on factors unique to Unit 1, that

the area qualified as “essential for the conservation of

the species,” and both courts below sustained that deter-

mination after finding it to be adequately supported by

the administrative record. This Court should do likewise.’

* If petitioner identifies reason to believe that the designation of

Unit 1 is no longer warranted, Section 4(b)(3) of the Act permits it to

file a petition to “revise” the existing “critical habitat designation.”

16 U.S.C. 1533(b)(3)(D)(D; see 50 C.F.R. 424.14(e).

2. The Act’s other conservation tools have no bearing on

the Service’s duty to designate critical habitat

In an effort to minimize the consequences of its

unduly narrow interpretation of critical habitat, peti-

tioner points (Br. 39-45) to other conservation authori-

ties set forth in the Act. But those other authorities do

not limit the meaning of critical habitat.

As petitioner notes, Section 5 of the Act authorizes

the Service to acquire private land for the protection of

endangered or threatened species. 16 U.S.C. 1534 (2012

& Supp. IV 2016). That authority operates independently,

not instead, of the designation of critical habitat. Indeed,

the legislative history cited by petitioner (Br. 40) reflects

that “it is beyond [the government’s] capability to acquire

all the habitat which is important to those species of plants

and animals which are endangered today,” 1973 House

Report 5, and Congress therefore provided for designa-

tion of “critical habitat” to promote species conservation

on private and public lands alike." This Court in Sweet

Home rejected a similar reliance on Section 5 to support

a narrow interpretation of the Act’s protections of habitat,

see 515 U.S. at 698, 702-708, and it should do the same here.

Petitioner’s reliance on Section 6 of the Act, 16 U.S.C.

1535, is likewise unavailing. That provision allows the

Service to provide funding to state governments, which

may use it to support voluntary conservation activities.

Again, however, the Act does not contemplate that such

activities may stand in for the Service’s mandatory duty

'° Petitioner’s arguments focus on privately owned land. But their

proposed limitations on “habitat” and “essential” would apparently

apply equally to federal lands and would make it more difficult to pro-

tect listed species even on those lands, despite federal agencies’ spe-

cial responsibilities to conserve species. See 16 U.S.C. 1531(c)(1),

1536(a)(1).

to designate a species’ critical habitat. In fact, the des-

ignation of critical habitat supports voluntary conserva-

tion by educating state and local governments, landown-

ers, and the public about areas of importance to endan-

gered species. See, eg., Sierra Club v. U.S. Fish &

Wildlife Serv., 245 F.3d 434, 446 (5th Cir. 2001) (noting

these “informational benefits”); 81 Fed. Reg. at 7226

“Specifying the geographic location of critical habitat”

helps focus “conservation programs.”).

Lastly, Section 10(j) of the Act permits the Serviee to

“authorize the release * * * of any population * * * of

an endangered species or a threatened species outside

the current range of such species” in order to “further

the conservation of such species,” 16 U.S.C.

1539(j)(2)(A), and provides that the land onto which that

“experimental population” is released generally “shall

not be designated” as “critical habitat,” 16 U.S.C.

1539(j)(2)(C)(ii). But such a population may be released

onto private land only with a landowner’s consent, and

petitioner has not suggested that it would be amenable

to a Section 10(j) release on its property as an alternative

to critical-habitat designation.

C. Petitioner’s Reliance On Constitutional-Avoidance

Principles Is Misplaced

In arguing that Unit 1 is neither “habitat” nor “es-

sential” for “the conservation of the species,” petitioner

also invokes the canon of constitutional avoidance. See

Pet. Br. 32-35; cf. Markle Br. 36-38. “Under the consti-

tutional-avoidance canon, when statutory language is

susceptible of multiple interpretations, a court may

shun an interpretation that raises serious constitutional

doubts and instead may adopt an alternative that avoids

those problems.” Jennings v. Rodriguez, 138 S. Ct. 830,

836 (2018). That canon is inapplicable here, however,

because the principal case petitioner relies on is inappo-

site; the Act is not sufficiently ambiguous to warrant de-

parture from its text; and the doubts petitioner seeks to

raise would not be “avoid[ed]” by its interpretation. /bid.

First, plaintiffs argue that the designation of Unit |

represents a potentially unconstitutional expansion of

federal “jurisdiction.” Markle Br. 37; see Pet. Br. 32-

34. They note that, in SWANCC, this Court stated that

“[plermitting [the federal agencies] to claim federal ju-

risdiction over ponds and mudflats” would “result in a

significant impingement of the State’s traditional and

primary power over land and water use” without any

clear indication in the Clean Water Act of such intent.

531 U.S. at 174. The Court therefore reasoned that

Congress likely did not intend to extend federal regula-

tory jurisdiction over isolated or ephemeral waters that

otherwise lacked any federal nexus.

The designation of critical habitat is materially dif-

ferent. A critical-habitat designation does not create

federal “jurisdiction” where none otherwise exists. On

the contrary, such a designation has operative effect

only to the extent there exists an independent federal

nexus to the land. Even then, unlike jurisdictional de-

terminations under the Clean Water Act, the designa-

tion of land as critical habitat does not directly impose

any legal obligations on private parties; instead, it im-

poses consultation obligations on federal agencies.

16 U.S.C. 1536(a). Congress acts well within its consti-

tutional authority in specifying the decisionmaking pro-

cesses that federal agencies must follow in administer-

ing federal programs.

Second, petitioner asserts (Pet. Br. 34-35; see Mar-

kle Br. 36-37) that excluding Unit 1 from critical habitat

is necessary to avoid testing the limits of the Commerce

Clause. But the canon of constitutional avoidance does

not authorize courts to override a statute’s plan text.

See, e.g., Jennings, 138 S. Ct. at 842 (recognizing that

“liJn the absence of more than one plausible construc-

tion, the canon simply has no application”) (citation and

internal quotation marks omitted). And here, for the

reasons discussed above, the best reading of the Act

supports the Service’s determination."

Finally, and perhaps most importantly, petitioner

does not explain how its interpretation of the Act would

resolve the constitutional doubts it posits. Petitioner

asserts that the designation of Unit 1 as critical habitat

potentially violates the Commerce Clause because

“[t}here is no interstate commerce in” the dusky gopher

'! In the court of appeals, petitioner “conceded” that the “critical-

habitat provision of the ESA,” properly interpreted, is “a constitu-

tional exercise of Congress’s Commerce Clause authority.” Pet. App.

37a. To date, every court of appeals to consider the question has held

that the Service’s actions to protect intrastate species and their habi-

tat are within Congress’s power under the Commerce Clause. See id.

at 42a; People for Ethical Treatment of Prop. Owners v. United

States Fish & Wildlife Serv., 852 F.3d 990, 1000-1008 (10th Cir. 2017),

cert. denied, 138 S. Ct. 649 (2018); San Luis & Delta-Mendota Water

Auth. v. Salazar, 638 F.3d 1163, 1175-1177 (9th Cir.), cert. denied,

565 U.S. 1009 (2011); Alabama-Tombigbee Rivers Coal v.

477 F.3d 1250, 1271-1277 (11th Cir. 2007), cert. denied,

552 U.S. 1097 (2008); GDF Realty Invs., Lid. v. Norton, 326 F.3d 622,

640 (5th Cir. 2003), cert. denied, 545 U.S. 1114 (2005); Gibbs v. Bab-

bitt, 214 F.3d 483, 497-498 (4th Cir. 2000), cert. denied, 531 U.S. 1145

(2001); National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041

(D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998). Those decisions

have applied, inter alia, the principle that intrastate activity can “be

regulated as ‘an essential part of a larger regulation of economic ac-

tivity, in which the regulatory scheme could be undercut unless the

intrastate activity were regulated.’”” Gonzales v. Raich, 545 U.S. 1,

36 (2005) (quoting United States v. Lopez, 514 U.S. 549, 561 (1995)).

frog and the frog currently “live[s] only in Mississippi.”

Pet. Br. 34. But plaintiffs have not denied that the Ser-

vice acted “legitimately” in designating critical habitat

for the frog at both occupied and unoccupied sites in

Mississippi. Markle Br. 16. If petitioner were correct

that designating critical habitat for intrastate species is

unlawful, there is no logical reason why the (intrastate)

designations in Mississippi would be permissible while

the (cross-state) designation in Louisiana would not be.

And constitutional concerns based upon the asserted

“intrastate, noncommercial” character of the species

(Markle Br. 37) logically would extend even to land that

would satisfy petitioner’s view of “habitat” and “essen-

tial.” Petitioner’s reliance on constitutional avoidance

is thus misplaced.

Il. THE SERVICE’S DECISION NOT TO EXERCISE ITS

DISCRETIONARY AUTHORITY TO EXCLUDE UNIT |

IS COMMITTED TO AGENCY DISCRETION BY LAW

A. The Act Provides No Meaningful Standard To Evaluate

The Service’s Decision Not To Exclude Land From

Critical Habitat

1. The Endangered Species Act expressly authorizes

judicial review of certain specified actions or failures to act

by the Service and other federal agencies. See 16 U.S.C.

1540(g)(1)(A)-(C). The Act does not otherwise provide for

judicial review of the Service’s performance of its func-

tions. This Court has held, however, that the Service’s ap-

plication of the Act’s substantive regulatory requirements

is generally subject to judicial review under the APA. See

Bennett v. Spear, 520 U.S. 154, 175 (1997). Thus, for ex-

ample, the Service’s determination that an unoccupied

area is “essential for the conservation of the species,”

16 U.S.C. 1532(5)(A)(ii), is judicially reviewable.

Under the APA, however, judicial review is unavailable

“to the extent that *** agency action is committed to

agency discretion by law.” 5 U.S.C. 701(a)(2). Agency

action is committed to agency discretion where, inter alia,

the relevant statute provides “no meaningful standard

against which to judge the agency’s exercise of discre-

tion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985); see

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 410 (1971) (agency action is unreviewable “where

‘statutes are drawn in such broad terms that in a given

case there is no law to apply’”) (quoting S. Rep. No. 752,

79th Cong., Ist Sess. 26 (1945)).

Petitioner’s argument that Unit 1 should have been

excluded from critical habitat rests upon Section 4(b)(2)

of the Act, 16 U.S.C. 1533(b)(2). That provision contains

two operative sentences. The first sentence directs that

“(t]he Secretary shall designate critical habitat * * * on

the basis of the best scientific data available and after tak-

ing into consideration the economic impact, the impact on

national security, and any other relevant impact, of speci-

fying any particular area as critical habitat.” 16 U.S.C.

1533(b)(2) (emphasis added). The second sentence pro-

vides that “[t]he 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.” bid. (emphasis added).

The Act articulates only one constraint on that discre-

tion: the Service may not exclude an area if it “deter-

mines, based on the best scientific and commercial data

available, that the failure to designate such area as criti-

cal habitat will result in the extinction of the species con-

cerned.” /bid. Thus, while the first sentence establishes

a mandatory duty to “consider[]” certain impacts, the

second sentence establishes an optional exclusion pro-

cess based on a discretionary weighing of benefits.

2. The court of appeals correctly held that the Ser-

vice’s exercise of discretion not to exclude Unit 1 under

the second sentence of Section 4(b)(2) was committed to

agency discretion by law.

First, Section 4(b)(2)’s text provides no general in-

struction concerning the circumstances in which, if the

Service finds the benefits of exclusion to outweigh the

benefits of inclusion, the Service should exercise its dis-

cretion to either exclude or not exclude an area from the

designation. The Act simply provides that, in that cir-

cumstance, the Service may exclude the area, so long as

exclusion would not lead to extinction. It does not iden-

tify any set of cases in which the Service should do so.

The permissive phrasing, lack of standards, and commit-

ment to the Service’s “determinfation]” in the second

sentence of Section 4(b)(2)—particularly when read in

light of the mandatory provisions in the first sentence—

“fairly exudes deference” and reflects Congress’s judg-

ment that the Service itself should determine when ex-

clusion is appropriate. Webster v. Doe, 486 U.S. 592, 600

(1988).

The legislative record confirms this reading of the

statutory text. Section 4(b)(2) was enacted in 1978, and

its relevant language first appeared in a House bill. See

H.R. 14104, § 2. The House committee stated that, under

the bill, “[e]conomics and any other relevant impact shall

be considered by the Secretary in setting the limits of

critical habitat for such a species,” and thus the “deter-

mination of critical habitat” would no longer be “a purely

biological question.” 1978 House Report 17. The com-

mittee explained, however, that “(t]he Secretary is not

required to give economics or any other ‘relevant impact’

predominant consideration.” /bid. Instead, “[t|he con-

sideration and weight given to any particular impact is

completely within the Secretary’s discretion.” Ibid. (em-

phasis added).

In some instances, an agency may supply judicially

manageable standards through regulations. See, «49.,

INS v. Yang, 519 U.S. 26, 32 (1996). Here, however, the

Service’s regulations do not articulate any such standards,

but instead simply reaffirm its “discretion.” 50 C.F.R.

424.1% c); see 50 C.F.R. 424.19 (2012). And the agency's

recent “final policy on exclusions from critical habitat”

reaffirms that “the decision to exclude is always discre-

tionary.” 81 Fed. Reg. 7226, 7229 (Feb. 11, 2016); see id.

at 7228 (“[N jothing in the Act, its implementing regula-

tions, or this policy limits this discretion.”).

In light of these considerations, both courts of appeals

to have considered the question have concluded that the

Service’s decision not to exclude an area from critical

habitat is committed to agency discretion. See Pet. App.

32a-36a; Building Indus. Ass’n of the Bay Area v.

United States Dep't of Commerce, 792 F.3d 1027, 1034-

1035 (9th Cir. 2015), cert. denied, 137 S. Ct. 328 (2016);

Bear Valley, 790 F.3d at 989-990.

B. Petitioner Identifies No Meaningful Standard For

Reviewing The Service’s Decision Not To Exclude Unit |

1. In contending that 5 U.S.C. 701(a)(2) does not bar

review, petitioner principally relies (Br. 21, 46-47, 50) on

this Court’s general presumption in favor of judicial re-

view, see Mach Mining, LLC v. EEOC, 135 8. Ct. 1645,

1651 (2015), and on the APA’s allowance of review for

“abuse of discretion,” 5 U.S.C. 706(2)(A). But this Court

has made clear that the presumption favoring review

may be rebutted, including where there exists “no mean-

ingful standard against which to judge the agency’s ex-

ercise of discretion.” Heckler, 470 U.S. at 830." Here,

as Markle acknowledges, the Act “provide[s] no ‘mean-

ingful’ or ‘substantive’ standard by which to measure a

decision not to exclude.” Markle Br. 47 (capitalization

and emphasis omitted). And “if no judicially manageable

standards are available,” it is “impossible to evaluate

agency action for ‘abuse of discretion.’” Heckler, 470 U.S.

at 830; see Building Indus. Ass'n, 792 F.3d at 1035.

In each case relied upon by petitioner, the relevant

statute provided a meaningful standard. Mach Mining

involved statutory language providing that EEOC “shal!

endeavor to eliminate [an] alleged unlawful employment

practice” by informal methods. 42 U.S.C. 2000e-5(b).

The Court explained that the statute was worded in

“mandatory, not precatory” terms, 135 S. Ct. at 1651, and

“provide|d] certain concrete standards pertaining to

what that endeavor must entail,” id. at 1652. Here, how-

ever, Section 1533(b)(2) provides that the Service “may”

exclude an area without supplying any such standards.

Bennett v. Spear, supra, also illustrates these princi-

ples. In Bennett, the Court considered a claim that the

Service failed to consider the economic impact of a critical-

habitat designation as required by the first sentence of

Section 4(b)(2). The question presented was whether the

Markle asserts (Br. 40-44) that this Court should abandon the

“Heckler ‘no law to apply’ test,” citing Justice Sealia’s dissent in Web-

ster. But what Justice Scalia urged—and what this Court subse-

quently endorsed in Lincoln v. Vigil, 508 U.S. 182, 191-192 (1993)— is

that the “law to apply” test is not the exclusive basis for determining

that agency action is committed to agency discretion. See Webster,

486 U.S. at 607 (Sealia, J., dissenting) (“Our precedents amply show

that ‘commit{ment] to agency discretion by law’ includes, but is not

limited to, situations in which there is ‘no law to apply.””) (brackets in

original).

plaintiffs’ claim could proceed under the Act’s provision

authorizing suit “where there is alleged a failure of the

Secretary to perform any act or duty under section 1533

of this title which is not discretionary.” 16 U.S.C.

1540(g)(1)(C). The Court held that the first sentence of

Section 4(b)(2) established such a duty in providing that

“(t]he Secretary shall designate critical habitat * * * on

the basis of the best scientific data available and after

taking into consideration the economic impact” of the

designation. 16 U.S.C. 1533(b)(2) (emphasis added).

Petitioner emphasizes (Pet. Br. 46-47; see Markle Br.

49-51) that, in explaining why the citizen-suit provision

authorized suit, Bennett stated that “the fact that the

Secretary's ultimate decision is reviewable only for

abuse of discretion does not alter the categorical require

ment that, in arriving at his decision, he ‘tak{e) into con-

sideration the economic impact.’”” 520 U.S. at 172 (cita-

tion omitted; brackets in original). No actual critical-

habitat designation had been made, however, and the

Court’s passing reference to the “abuse of discretion”

standard should not be understood to have settled open

questions about the circumstances in which the Service’s

ultimate decision would be reviewable and, if available,

under what standards. Cf. Central Va. Cmty. Coll. v.

Katz, 546 U.S. 356, 363 (2006) (“[W]e are not bound to

follow our dicta in a prior case in which the point now at

issue was not fully debated.”).

In any event, Bennett’s dictum is not necessarily in-

consistent with the Service’s understanding. Review for

“abuse of discretion” is available in some cases, including

where the Service affirmatively exercises its power un-

der Section 4(b)(2) to exclude an area from critical habitat.

In that situation, review is available to ensure that the

Service has not abused its discretion in finding the predi-

cate for exclusion to be established, including that exclu-

sion will not “result in the extinction of the species con-

cerned.” 16 U.S.C. 1533(b)(2). Here, however, the Ser-

vice’s decision not to exercise its authority implicates no

standard that a court could apply on abuse-of-discretion

review.

Petitioner asserts that it is anomalous that the Ser-

vice’s decision to exclude would be reviewable, but a de-

cision not to do so would not be. Cf. Pet. Br. 49. But that

result follows from the Act’s structure and text. Section

4(b)(2) permits the Service to exclude an area from criti-

cal habitat only if specified statutory prerequisites are

met. If the Service exercises that discretion, a court may

review whether those prerequisites were satisfied. By

contrast, if the Service declines to exercise its discretion-

ary authority, the Act supplies no basis upon which to

find an abuse of discretion. See Bear Valley, 790 F.3d at

989-990. This distinction between reviewable exclusions,

and unreviewable decisions not to exclude, also accords

with the overriding purpose of the Act to “halt and re-

verse the trend toward species extinction.” Sweet Home,

515 U.S. at 699 (citation omitted); see ibid. (noting that

this purpose is “reflected not only in the stated policies

of the Act, but in literally every section of the statute”)

(citation omitted).

Markle’s assertion (Br. 48) that cost-benefit analysis

principles could provide a judicially manageable stand-

ard is incorrect. The Service’s discretion to exclude ex-

ists only if it first finds that “the benefits of such exclu-

sion outweigh the benefits of specifying such area as part

of the critical habitat.” 16 U.S.C. 1533(b)(2). If the Ser-

vice makes such a finding, that finding permits, but does

not require, the Service to exclude an area from critical

habitat. The Service thus cannot be held to abuse its dis-

cretion in declining to exclude an area simply because the

costs of designation are found to outweigh its benefits.

Finally, petitioner’s assertion (Br. 54-55) that the Ser-

vice erred in weighing costs and benefits offers no basis

for disturbing the Service’s decision. The Service con-

cluded that “{its] economic analysis did not identify any

disproportionate costs that are likely to result from the

designation.” J.A. 190. Petitioner argues that the Service

should have given greater weight to its findings concern-

ing economic costs and lesser weight to those concerning

biological benefits. But Congress enacted Section 4(b)(2)

with the understanding that “(t]he Secretary is not re-

quired to give economics or any other ‘relevant impact’

predominant consideration,” and the “weight given to any

particular impact is completely within the Secretary’s dis-

cretion.” 1978 House Report 17.

In any event, as the court of appeals observed, “even

were we to assume that [plaintiffs] are correct that the

economic benefits of exclusion outweigh the conservation

benefits of designation, the Service is still not obligated

to exclude Unit 1.” Pet. App. 35a. The second sentence

of Section 4(b)(2) does not permit a court to compel an

exclusion based simply on disagreements about the

threshold weighing of costs and benefits. See /CC v.

Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 283

(1987) (rejecting the “principle that if the agency gives a

‘reviewable’ reason for otherwise unreviewable action,

the action becomes reviewable”).

2. Petitioner’s arguments also overlook that, even

though the Service’s application of the second sentence

of Section 4(b)(2) is committed to agency discretion, its

application of the first sentence is not. As Bennett held,

claims that the Service failed to consider the “economic

impact” or “other relevant impact{s]” of its designation,

as required by the first sentence, 16 U.S.C. 1533(b)(2),

are reviewable.

Here, however, petitioner challenges the Service's ul-

timate “refus|[al] to exclude Unit 1” from critical habitat,

Pet. Br. 52 (capitalization and emphasis omitted), not an

alleged failure to consider relevant factors. Indeed, pe-

titioner’s argument that the Service should have ex-

cluded Unit 1 largely reflects its agreement with the eco-

nomic-impact scenarios discussed by the Service. See,

e.g., bid. (invoking “[t|he Service[’s] determination]

that designating Unit 1 as critical habitat would elimi-

nate up to $33.9 million in present value of land”).

Petitioner asserts in passing that “F'WS’s analysis of

the economic costs of designation also was incomplete.”

Pet. Br. 54. That assertion does not sufficiently preserve

a freestanding claim that the Service’s consideration of

economic impact under the first sentence of Section

4(b)(2) was arbitrary and capricious. Even if it did, how-

ever, the record shows that the Service reasonably ana-

lyzed the economic impact of its designation upon Unit 1

using methods it considered reliable. See J.A. 184-190;

J.A. 63-98. Petitioner asserts that the Service did not

consider “stigma costs” or “the potential loss of oil and

gas production.” Pet. Br. 54. But the record reflects that

the Service accounted for any “potential indirect stigma

effect,” J.A. 91, 138, and identified the possibility of “oil

and gas extraction” as a “key uncertaint/y]” that could

have “[pjotentially major” economic impacts, J.A. 92-93.

C. To The Extent The Service’s Decision Not To Exclude

Unit 1 Is Found To Be Reviewable, It Should Be Upheld

Assuming that the Service’s decision not to exclude

Unit 1 is reviewable, petitioner urges (Br. 52-56) this

Court to decide whether that decision was an abuse of

discretion. The court of appeals, having held the decision

unreviewable, did not reach that question. If this Court

concludes that abuse-of-discretion review is available, it

should remand for application of that standard.

If this Court elects not to remand, it should uphold

the Service’s decision. Petitioner acknowledges that, if

review is available, the agency should be afforded “broad

latitude.” Pet. Br. 49. Here the record contains a suffi-

cient explanation of the Service’s decision not to exercise

its discretion to exclude Unit 1. In addition to weighing

the benefits of the designation as a whole, the Service

considered the specific benefits of designating Unit 1,

which contains the best remaining breeding habitat for

the species and would protect against stochastic risks.

The Service’s conclusion that the costs of designation

were not “disproportionate” to its benefits must be con-

sidered in light of the uniquely valuable habitat that Unit |

would provide. J.A. 190. And the Act did not bar the

Service from relying on the “benefits” it considered.

16 U.S.C. 1533(b)(2). The Service’s decision not to exclude

the unique area it had just found “essential for the con-

servation of the species” was not an abuse of discretion.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JEFFREY H. Woop

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY E. SANDBERG

Assistant to the Solicitor

General

ANDREW C. MERGEN

MARY HOLLINGSWORTH

J. DAVID GUNTER IT

Attorneys

JUNE 2018

APPENDIX

1. 5 U.S.C. 701(a) provides:

Application; definitions

(a) This chapter applies, according to the provisions

thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discre-

tion by law.

2. 5 U.S.C. 706 provides in pertinent part:

Scope of review

To the extent necessary to decision and when pre-

sented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability

of the terms of an agency action. The reviewing court

shall—

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law;

(1a)

3. Section 2 of the Endangered Species Act of 1973

(Act), 16 U.S.C. 1531, provides in pertinent part:

Congressional findings and declaration of purposes and

policy

(a) Findings

The Congress finds and declares that—

(1) various species of fish, wildlife, and plants in

the United States have been rendered extinct as a

consequence of economic growth and development

untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants

have been so depleted in numbers that they are in

danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are

of esthetic, ecological, educational, historical, recrea-

tional, and scientific value to the Nation and its people;

(4) the United States has pledged itself as a sov-

ereign state in the international community to con-

serve to the extent practicable the various species of

fish or wildlife and plants facing extinction * * *

(G) * * * - and

(5) encouraging the States and other interested

parties, through Federal financial assistance and a

system of incentives, to develop and maintain conser-

vation programs which meet national and interna-

tional standards is a key to meeting the Nation’s in-

ternational commitments and to better safeguarding,

for the benefit of all citizens, the Nation’s heritage in

fish, wildlife, and plants.

(b) Purposes

The purposes of this chapter are to provide a means

whereby the ecosystems upon which endangered species

and threatened species depend may be conserved, to

provide a program for the conservation of such endan-

gered species and threatened species, and to take such

steps as may be appropriate to achieve the purposes of

the treaties and conventions set forth in subsection (a)

of this section.

(ec) Policy

(1) It is further declared to be the policy of Con-

gress that all Federal departments and agencies shall

seek to conserve endangered species and threatened

species and shall utilize their authorities in furtherance

of the purposes of this chapter.

(2) It is further declared to be the policy of Con-

gress that Federal agencies shall cooperate with State

and local agencies to resolve water resource issues in

concert with conservation of endangered species.

4. Section 3 of the Act, 16 U.S.C. 1532, provides in

pertinent part:

Definitions

For the purposes of this chapter—

(3) The terms “conserve”, “conserving”, and “con-

servation” mean to use and the use of all methods and

procedures which are necessary to bring any endan-

gered species or threatened species to the point at which

the measures provided pursuant to this chapter are no

longer necessary. Such methods and procedures in-

clude, but are not limited to, all activities associated with

scientific resources management such as research, cen-

sus, law enforcement, habitat acquisition and mainte-

nance, propagation, live trapping, and transplantation,

and, in the extraordinary case where population pres-

sures within a given ecosystem cannot be otherwise re-

lieved, may include regulated taking.

(5)(A) The term “critical habitat” for a threatened

or endangered species means—

(i) the specific areas within the geographical

area occupied by the species, at the time it is listed in

accordance with the provisions of section 1533 of this

title, on which are found those physical or biological

features (I) essential to the conservation of the spe-

cies and (II) which may require special management

considerations or protection; and

(ii) specific areas outside the geographical area

occupied by the species at the time it is listed in accord-

ance with the provisions of section 1533 of this title,

upon a determination by the Secretary that such

areas are essential for the conservation of the species.

(B) Critical habitat may be established for those

species now listed as threatened or endangered species

for which no critical habitat has heretofore been estab-

lished as set forth in subparagraph (A) of this paragraph.

the Secretary, critical habitat shall not include the en-

tire geographical area which can be occupied by the

threatened or endangered species.

(6) The term “endangered species” means any spe-

cies which is in danger of extinction throughout all or a

significant portion of its range other than a species of

the Class Insecta determined by the Secretary to con-

stitute a pest whose protection under the provisions of

this chapter would present an overwhelming and over-

riding risk to man.

* s+ +

(19) The term “take” means to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect, or to

attempt to engage in any such conduct.

(20) The term “threatened species” means any spe-

cies which is likely to become an endangered species

within the foreseeable future throughout all or a signif-

icant portion of its range.

> e+ + #

5. Section 4 of the Act, 16 U.S.C. 1533, provides in

pertinent part:

Determination of endangered species and threatened

species

(a) Generally

(1) The Secretary shall by regulation promulgated

in accordance with subsection (b) of this section deter-

mine whether any species is an endangered species or a

threatened species because of any of the following factors:

(A) _ the present or threatened destruction, mod-

ification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational,

scientific, or educational purposes;

(D) the inadequacy of existing regulatory mech-

anisms; or

(E) other natural or manmade factors affecting

its continued existence.

(3)(A) The Secretary, by regulation promulgated in

accordance with subsection (b) of this section and to the

maximum extent prudent and determinable—

(i) shall, concurrently with making a determina-

tion under paragraph (1) that a species is an endan-

gered species or a threatened species, designate any

habitat of such species which is then considered to be

critical habitat; and

(ii) may, from time-to-time thereafter as appro-

priate, revise such designation.

(b) Basis for determination

(2) The Secretary shall designate critical habitat,

and make revisions thereto, under subsection (a)(3) of

this section on the basis of the best scientific data avail-

able and after taking into consideration the economic

impact, the impact on national security, and any other rel-

evant impact, of specifying any particular area as critical

habitat. The Secretary may exclude any area from crit-

ical habitat if he determines that the benefits of such ex-

clusion 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 wil!

result in the extinction of the species concerned.

(3)

(DXi) To the maximum extent practicable, within

90 days after receiving the petition of an interested per-

son under section 553(e) of title 5, to revise a critical hab-

itat designation, the Secretary shall make a finding as to

whether the petition presents substantial scientific in-

formation indicating that the revision may be warranted.

The Secretary shall promptly publish such finding in the

Federal Register.

(ii) Within 12 months after receiving a petition that

is found under clause (i) to present substantial infor-

mation indicating that the requested revision may be

warranted, the Secretary shall determine how he intends

to proceed with the requested revision, and shall promptly

publish notice of such intention in the Federal Register.

6. Section 5 of the Act, 16 U.S.C. 1534 (2012 & Supp.

IV 2016), provides:

Land acquisition

(a) Implementation of conservation program; authori-

zation of Secretary and Secretary of Agriculture

The Secretary, and the Secretary of Agriculture with

respect to the National Forest System, shall establish

and implement a program to conserve fish, wildlife, and

plants, including those which are listed as endangered

species or threatened species pursuant to section 1533

of this title. To carry out such a program, the appropri-

ate Secretary—

(1) shall utilize, the land acquisition and other

authority under the Fish and Wildlife Act of 1956, as

amended [16 U.S.C. 742a et seq.], the Fish and Wildlife

Coordination Act, as amended [16 U.S.C. 661 et seq.|,

and the Migratory Bird Conservation Act [16 U.S.C.

715 et seq.], as appropriate; and

(2) is authorized to acquire by purchase, dona-

tion, or otherwise, lands, waters, or interest therein,

and such authority shall be in addition to any other

land acquisition authority vested in him.

(b) Availability of funds for acquisition of lands,

waters, etc.

Funds made available pursuant to chapter 2003 of title

54 may be used for the purpose of acquiring lands, waters,

or interests therein under subsection (a) of this section.

7. Section 6 of the Act, 16 U.S.C. 1535, provides in

pertinent part:

Cooperation with States

(a) Generally

In carrying out the program authorized by this chap-

ter, the Secretary shall cooperate to the maximum ex-

tent practicable with the States. Such cooperation shal!

include consultation with the States concerned before

acquiring any land or water, or interest therein, for the

purpose of conserving any endangered species or threat-

ened species.

(b) Management agreements

The Secretary may enter into agreements with any

State for the administration and management of any

area established for the conservation of endangered spe-

cies or threatened species. Any revenues derived from

the administration of such areas under these agree-

ments shall be subject to the provisions of section 715s

of this title.

(1) In furtherance of the purposes of this chapter,

the Secretary is authorized to enter into a cooperative

agreement in accordance with this section with any

State which establishes and maintains an adequate and

10a

active program for the conservation of endangered spe-

cies and threatened species. Within one hundred and

twenty days after the Secretary receives a certified copy

of such a proposed State program, he shall make a de-

termination whether such program is in accordance with

this chapter. Unless he determines, pursuant to this

paragraph, that the State program is not in accordance

with this chapter, he shall enter into a cooperative

agreement with the State for the purpose of assisting in

implementation of the State program. * * *

8. Section 7 of the Act, 16 U.S.C. 1536, provides in

pertinent part:

Interagency cooperation

(a) Federal agency actions and consultations

(1) The Secretary shall review other programs ad-

ministered by him and utilize such programs in further-

ance of the purposes of this chapter. All other Federal

agencies shall, in consultation with and with the assis-

tance of the Secretary, utilize their authorities in fur-

therance of the purposes of this chapter by carrying out

programs for the conservation of endangered species

and threatened species listed pursuant to section 1533

of this title.

(2) Each Federal agency shall, in consultation with

and with the assistance of the Secretary, insure that any

action authorized, funded, or carried out by such agency

(hereinafter in this section referred to as an “agency ac-

tion”) is not likely to jeopardize the continued existence

lla

of any endangered species or threatened species or re-

sult in the destruction or adverse modification of habitat

of such species which is determined by the Secretary,

after consultation as appropriate with affected States, to

be critical, unless such agency has been granted an ex-

emption for such action by the Committee pursuant to

subsection (h) of this section. In fulfilling the require-

ments of this paragraph each agency shall use the best

scientific and commercial data available.

(3) Subject to such guidelines as the Secretary may

establish, a Federal agency shall consult with the Secre-

tary on any prospective agency action at the request of,

and in cooperation with, the prospective permit or license

applicant if the applicant has reason to believe that an

endangered species or a threatened species may be pre-

sent in the area affected by his project and that imple-

mentation of such action will likely affect such species.

(4) Each Federal agency shall confer with the Sec-

retary on any agency action which is likely to jeopardize

the continued existence of any species proposed to be

listed under section 1533 of this title or result in the de-

struction or adverse modification of critical habitat pro-

posed to be designated for such species. This paragraph

does not require a lir itation on the commitment of re-

sources as described in subsection (d) of this section.

(b) Opinion of Secretary

(1A) Consultation under subsection (a)(2) of this

section with respect to any agency action shall be con-

cluded within the 90-day period beginning on the date

on which initiated or, subject to subparagraph (B), within

such other period of time as is mutually agreeable to the

Secretary and the Federal agency.

12a

(B) In the case of an agency action involving a permit

or license applicant, the Secretary and the Federal agency

may not mutually agree to conclude consultation within

a period exceeding 90 days unless the Secretary, before

the close of the 90th day referred to in subparagraph (A)—

(i) if the consultation period proposed to be

agreed to will end before the 150th day after the date

on which consultation was initiated, submits to the

applicant a written statement setting forth—

(I) the reasons why a longer period is required,

(11) the information that is required to com-

plete the consultation, and

(III) the estimated date on which consultation

will be completed; or

(ii) if the consultation period proposed to be

agreed to will end 150 or more days after the date on

which consultation was initiated, obtains the consent

of the applicant to such period.

The Secretary and the Federal agency may mutually

agree to extend a consultation period established under

the preceding sentence if the Secretary, before the close

of such period, obtains the consent of the applicant to

the extension.

(2) Consultation under subsection (a)(3) of this sec-

tion shall be concluded within such period as is agreea-

ble to the Secretary, the Federal agency, and the appli-

cant concerned.

(3)(A) Promptly after conclusion of consultation un-

der paragraph (2) or (3) of subsection (a) of this section,

the Secretary shall provide to the Federal agency and

the applicant, if any, a written statement setting forth

l3a

the Secretary’s opinion, and a summary of the infor-

mation on which the opinion is based, detailing how the

agency action affects the species or its critical habitat.

If jeopardy or adverse modification is found, the Secre-

tary shall suggest those reasonable and prudent alter-

natives which he believes would not violate subsection

(a)(2) of this section and can be taken by the Federal

agency or applicant in implementing the agency action.

(B) Consultation under subsection (a)(3) of this sec-

tion, and an opinion issued by the Secretary incident to

such consultation, regarding an agency action shall be

treated respectively as a consultation under subsection

(a)(2) of this section, and as an opinion issued after con-

sultation under such subsection, regarding that action

if the Secretary reviews the action before it is com-

menced by the Federal agency and finds, and notifies

such agency, that no significant changes have been made

with respect to the action and that no significant change

has occurred regarding the information used during the

initial consultation.

(4) If after consultation under subsection (a)(2) of

this section, the Secretary concludes that—

(A) _ the agency action will not violate such sub-

section, or offers reasonable and prudent alterna-

tives which the Secretary believes would not violate

such subsection;

(B) the taking of an endangered species or a

threatened species incidental to the agency action

will not violate such subsection; and

cies of a marine mammal is involved, the taking is au-

thorized pursuant to section 1371(a)(5) of this title;

14a

the Secretary shall provide the Federal agency and the

applicant concerned, if any, with a written statement

that—

(i) specifies the impact of such incidental taking

on the species,

(ii) specifies those reasonable and prudent mea-

sures that the Secretary considers necessary or ap-

propriate to minimize such impact,

(iii) in the case of marine mammals, specifies

those measures that are necessary to comply with sec-

tion 1371(a)(5) of this title with regard to such taking,

and

(iv) sets forth the terms and conditions (includ-

ing, but not limited to, reporting requirements) that

must be complied with by the Federal agency or ap-

plicant (if any), or both, to implement the measures

specified under clauses (ii) and (iii).

(1) To facilitate compliance with the requirements

of subsection (a)(2) of this section, each Federal agency

shall, with respect to any agency action of such agency

for which no contract for construction has been entered

into and for which no construction has begun on Novem-

ber 10, 1978, request of the Secretary information whether

any species which is listed or proposed to be listed may

be present in the area of such proposed action. If the

Secretary advises, based on the best scientific and com-

mercial data available, that such species may be present,

such agency shall conduct a biological assessment for

the purpose of identifying any endangered species or

threatened species which is likely to be affected by

such action. Such assessment shall be completed within

l5a

180 days after the date on which initiated (or within such

other period as is mutually agreed to by the Secretary

and such agency, except that if a permit or license appli-

cant is involved, the 180-day period may not be extended

unless such agency provides the applicant, before the

close of such period, with a written statement setting

forth the estimated length of the proposed extension

and the reasons therefor) and, before any contract for

construction is entered into and before construction is

begun with respect to such action. Such assessment may

be undertaken as part of a Federal agency’s compliance

with the requirements of section 102 of the National En-

vironmental Policy Act of 1969 (42 U.S.C. 4332).

(2) Any person who may wish to apply for an ex-

emption under subsection (g) of this section for that ac-

tion may conduct a biological assessment to identify any

endangered species or threatened species which is likely

to be affected by such action. Any such biological assess-

ment must, however, be conducted in cooperation with

the Secretary and under the supervision of the appro-

priate Federal agency.

(d) Limitation on commitment of resources

After initiation of consultation required under sub-

section (a)(2) of this section, the Federal agency and the

permit or license applicant shall not make any irreversi-

ble or irretrievable commitment of resources with re-

spect to the agency action which has the effect of fore-

closing the formulation or implementation of any rea-

sonable and prudent alternative measures which would

not violate subsection (a)(2) of this section.

*es+ t+ &

l6a

9. Section 9 of the Act, 16 U.S.C. 1538, provides in

pertinent part:

Prohibited acts

(a) Generally

(1) Except as provided in sections 1535(g)(2) and

1539 of this title, with respect to any endangered species

of fish or wildlife listed pursuant to section 1533 of this

title it is unlawful for any person subject to the jurisdic-

tion of the United States to—

(A) import any such species into, or export any

such species from the United States;

(B) take any such species within the United States

or the territorial sea of the United States;

(D) possess, sell, deliver, carry, transport, or ship,

by any means whatsoever, any such species taken in

violation of subparagraphs (B) and (C);

(E) deliver, receive, carry, transport, or ship in

interstate or foreign commerce, by any means what-

soever and in the course of a commercial activity, any

such species;

(F) sell or offer for sale in interstate or foreign

commerce any such species; or

(G) violate any regulation pertaining to such

species or to any threatened species of fish or wildlife

listed pursuant to section 1533 of this title and prom-

ulgated by the Secretary pursuant to authority pro-

vided by this chapter.

17a

10. Section 10 of the Act, 16 U.S.C. 1539, provides in

pertinent part:

Exceptions

(j) Experimental populations

(1) For purposes of this subsection, the term “ex-

perimental population” means any population (including

any offspring arising solely therefrom) authorized by

the Secretary for release under paragraph (2), but only

when, and at such times as, the population is wholly sep-

arate geographically from nonexperimental populations

of the same species.

(2)(A) The Secretary may authorize the release (and

the related transportation) of any population (including

eggs, propagules, or individuals) of an endangered spe-

cies or a threatened species outside the current range of

such species if the Secretary determines that such re-

lease will further the conservation of such species.

(B) Before authorizing the release of any popula-

tion under subparagraph (A), the Secretary shall by reg-

ulation identify the population and determine, on the ba-

sis of the best available information, whether or not such

population is essential to the continued existence of an

endangered species or a threatened species.

of an experimental population shall be treated as a

threatened species; except that—

(i) solely for purposes of section 1536 of this title

(other than subsection (a)(1) thereof), an experimental

18a

population determined under subparagraph (B) to be

not essential to the continued existence of a species

shall be treated, except when it occurs in an area

within the National Wildlife Refuge System or the

National Park System, as a species proposed to be

listed under section 1533 of this title; and

(ii) critical habitat shall not be designated under

this chapter for any experimental population deter-

mined under subparagraph (B) to be not essential to

the continued existence of a species.

(3) The Secretary, with respect to populations of

endangered species or threatened species that the Sec-

retary authorized, before October 13, 1982, for release

in geographical areas separate from the other popula-

tions of such species, shall determine by regulation

which of such populations are an experimental popula-

tion for the purposes of this subsection and whether or

not each is essential to the continued existence of an en-

dangered species or a threatened species.

11. 50 C.F.R. 424.12 (2012) provided:

Criteria for designating critical habitat.

(a) Critical habitat shall be specified to the maxi-

mum extent prudent and determinable at the time a spe-

cies is proposed for listing. If designation of critical hab-

itat is not prudent or if critical habitat is not determina-

ble, the reasons for not designating critical habitat will

be stated in the publication of proposed and final rules

listing a species. A final designation of critical habitat

shall be made on the basis of the best scientific data

available, after taking into consideration the probable

19a

economic and other impacts of making such a designa-

tion in accordance with § 424.19.

(1) A designation of critical habitat is not prudent

when one or both of the following situations exist:

(i) The species is threatened by taking or other hu-

man activity, and identification of critical habitat can be

expected to increase the degree of such threat to the

species, or

(ii) Such designation of critical habitat would not be

beneficial to the species.

(2) Critical habitat is not determinable when one or

both of the following situations exist:

(i) Information sufficient to perform required ana-

lyses of the impacts of the designation is lacking, or

(ii) The biological needs of the species are not suf-

ficiently well known to permit identification of an area

as critical habitat.

(b) In determining what areas are critical habitat,

the Secretary shall consider those physical and biologi-

cal features that are essential to the conservation of a

given species and that may require special management

considerations or protection. Such requirements include,

but are not limited to the following:

(1) Space for individual and population growth, and

for normal behavior;

(2) Food, water, air, light, minerals, or other nutri-

tional or physiological requirements;

(3) Cover or shelter;

20a

(4) Sites for breeding, reproduction, rearing of off-

spring, germination, or seed dispersal; and generally;

(5) Habitats that are protected from disturbance or

are representative of the historic geographical and eco-

logical distributions of a species.

When considering the designation of critical habitat, the

Secretary shall focus on the principal biological or phys-

ical constituent elements within the defined area that

are essential to the conservation of the species. Known

primary constituent elements shall be listed with the

critical habitat description. Primary constituent elements

may include, but are not limited to, the following: roost

sites, nesting grounds, spawning sites, feeding sites,

seasonal wetland or dryland, water quality or quantity,

host species or plant pollinator, geological formation,

vegetation type, tide, and specific soil types.

(ec) Each critical habitat area will be shown on a

map, with more-detailed information discussed in the

preamble of the rulemaking documents published in the

FEDERAL REGISTER and made available from the lead

field office of the Service responsible for such designa-

tion. Textual information may be included for purposes

of clarifying or refining the location and boundaries of

each area or to explain the exclusion of sites (e.g., paved

roads, buildings) within the mapped area. Each area

will be referenced to the State(s), county(ies), or other

local government units within which all or part of the

critical habitat is located. Unless otherwise indicated

within the critical habitat descriptions, the names of the

State(s) and county(ies) are provided for informational

purposes only and do not constitute the boundaries of

the area. Ephemeral reference points (e.g., trees, sand

2Zla

bars) shall not be used in any textual description used to

clarify or refine the boundaries of critical habitat.

(d) When several habitats, each satisfying the re-

quirements for designation as critical habitat, are located

in proximity to one another, an inclusive area may be

designated as critical habitat.

Example: Several dozen or more small ponds, lakes,

and springs are found in a small local area. The entire area

could be designated critical habitat if it were concluded

that the upland areas were essential to the conservation

of an aquatic species located in the ponds and lakes.

(e) The Secretary shall designate as critical habitat

areas outside the geographical area presently occupied

by a species only when a designation limited to its pre-

sent range would be inadequate to ensure the conserva-

tion of the species.

(f) Critical habitat may be designated for those

species listed as threatened or endangered but for which

no critical habitat has been previously designated.

(g) Existing critical habitat may be revised accord-

ing to procedures in this section as new data become

available to the Secretary.

(h) Critical habitat shall not be designated within

foreign countries or in other areas outside of United

States jurisdiction.

22a

12. 50 C.F.R. 424.19 (2012) provided:

Final rules—impact analysis of critical habitat.

The Secretary shall identify any significant activities

that would either affect an area considered for designa-

tion as critical habitat or be likely to be affected by the

designation, and shall, after proposing designation of

such an area, consider the probable economic and other

impacts of the designation upon proposed or ongoing ac-

tivities. The Secretary may exclude any portion of such

an area from the critical habitat if the benefits of such

exclusion outweigh the benefits of specifying the area as

part of the critical habitat. The Secretary shall not ex-

clude any such area if, based on the best scientific and

commercial data available, he determines that the fail-

ure to designate that area as critical habitat will result

in the extinction of the species concerned.

13. 50 C.F.R. 424.19 currently provides:

Impact analysis and exclusions from critical habitat.

(a) At the time of publication of a proposed rule to

designate critical habitat, the Secretary will make avail-

able for public comment the draft economic analysis of

the designation. The draft economic analysis will be sum-

marized in the FEDERAL REGISTER notice of the pro-

posed designation of critical habitat.

(b) Prior to finalizing the designation of critical hab-

itat, the Secretary will consider the probable economic,

national security, and other relevant impacts of the des-

ignation upon proposed or ongoing activities. The Sec-

retary will consider impacts at a scale that the Secretary

23a

determines to be appropriate, and will compare the im-

pacts with and without the designation. Impacts may be

qualitatively or quantitatively described.

(ec) The Secretary has discretion to exclude any par-

ticular area from the critical habitat upon a determina-

tion that the benefits of such exclusion outweigh the

benefits of specifying the particular area as part of the

critical habitat. In identifying those benefits, in addition

to the mandatory consideration of impacts conducted

pursuant to paragraph (b) of this section, the Secretary

may assign the weight given to any benefits relevant to

the designation of critical habitat. The Secretary, how-

ever, will not exclude any particular area if, based on the

best scientific and commercial data available, the Secre-

tary determines that the failure to designate that area

as critical habitat will result in the extinction of the spe-

cies concerned.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.