# Respondents Brief — Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 45 (2018) (No. 17-71) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A22 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 2018 ## Text No. 17-71 In the Supreme Court of the Anited States WEYERHAEUSER COMPANY, PETITIONER v. 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 33 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) IV 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 Vi 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 IX 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 v. 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) 2 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). 3 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. 4 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 5 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 6 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. 7 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. 8 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. 9 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 10 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. 12 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- 13 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 14 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 15 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- 16 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. 17 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- 18 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. 19 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- 21 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 22 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). 23 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- Ee 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- 24 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 25 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”). 26 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 27 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 28 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, 29 ‘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, 30 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., 31 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”). 32 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 33 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 3A 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 35 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 36 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). 37 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 38 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- 39 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- 40 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). 4l 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). 42 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, 43 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 44 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)). 45 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. 46 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 47 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’ 48 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- 49 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). 50 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 51 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 52 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 53 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 54 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. 55 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) 2a 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, 3a 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 4a 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. 5a (C) Except in those circumstances determined by 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+ + # 6a 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; (C) disease or predation; (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. Ja (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 Ma 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A22. Public record. Not legal advice.