# Weyerhaeuser Company v. United States Fish and Wildlife Service, et al.

Note: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WEYERHAEUSER CO. v. UNITED STATES FISH AND WILDLIFE SERVICE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17–71. Argued October 1, 2018–Decided November 27, 2018
The Fish and Wildlife Service administers the Endangered Species Act of 1973 on behalf of the Secretary of the Interior. In 2001, the Service listed the dusky gopher frog as an endangered species. See 16 U. S. C. §1533(a)(1). That required the Service to designate “critical habitat” for the frog. The Service proposed designating as part of that critical habitat a site in St. Tammany Parish, Louisiana, which the Service dubbed “Unit 1.” The frog had once lived in Unit 1, but the land had long been used as a commercial timber plantation, and no frogs had been spotted there for decades. The Service concluded that Unit 1 met the statutory definition of unoccupied critical habitat because its rare, high-quality breeding ponds and distance from existing frog populations made it essential for the species’ conservation. §1532(5)(A)(ii). The Service then commissioned a report on the probable economic impact of its proposed critical-habitat designation. §1533(b)(2). With regard to Unit 1, the report found that designation might bar future development of the site, depriving the owners of up to $33.9 million. The Service nonetheless concluded that the potential costs were not disproportionate to the conservation benefits and proceeded to designate Unit 1 as critical habitat for the dusky gopher frog.
Unit 1 is owned by petitioner Weyerhaeuser and a group of family landowners. The owners of Unit 1 sued, contending that the closed-canopy timber plantation on Unit 1 could not be critical habitat for the dusky gopher frog, which lives in open-canopy forests. The District Court upheld the designation. The landowners also challenged the Service’s decision not to exclude Unit 1 from the frog’s critical habitat, arguing that the Service had failed to adequately weigh the ​benefits of designating Unit 1 against the economic impact, had used an unreasonable methodology for estimating economic impact, and had failed to consider several categories of costs. The District Court approved the Service’s methodology and declined to consider the challenge to the Service’s decision not to exclude Unit 1. The Fifth Circuit affirmed, rejecting the suggestion that the “critical habitat” definition contains any habitability requirement and concluding that the Service’s decision not to exclude Unit 1 was committed to agency discretion by law and was therefore unreviewable.
Held:
* An area is eligible for designation as critical habitat under §1533(a)(3)(A)(i) only if it is habitat for the species. That provision, the sole source of authority for critical-habit designations, states that when the Secretary lists a species as endangered he must also “designate any habitat of such species which is then considered to be critical habitat.” It does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species. The definition allows the Secretary to identify a subset of habitat that is critical, but leaves the larger category of habitat undefined. The Service does not now dispute that critical habitat must be habitat, but argues that habitat can include areas that, like Unit 1, would require some degree of modification to support a sustainable population of a given species. Weyerhaeuser urges that habitat cannot include areas where the species could not currently survive. The Service, in turn, disputes the premise that the administrative record shows that the frog could not survive in Unit 1. The Court of Appeals, which had no occasion to interpret the term “habitat” in §1533(a)(3)(A)(i) or to assess the Service’s administrative findings regarding Unit 1, should address these questions in the first instance. Pp. 8–10.
* The Secretary’s decision not to exclude an area from critical habitat under §1533(b)(2) is subject to judicial review. The Administrative Procedure Act creates a “basic presumption of judicial review” of agency action. Abbott Laboratories v. Gardner, 387 U. S. 136, 140. The Service contends that the presumption is rebutted here because the action is “committed to agency discretion by law,” 5 U. S. C. §701(a)(2), because §1533(b)(2) is one of those rare provisions “drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” Lincoln v. Vigil, 508 U. S. 182, 191.
Section 1533(b)(2) describes a unified process for weighing the impact of designating an area as critical habitat. The provision’s first sentence requires the Secretary to “tak[e] into consideration” economic and other impacts before designation, and the second sentence authorizes the Secretary to act on his consideration by providing that he ​“may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of” designation. The word “may” certainly confers discretion on the Secretary, but it does not segregate his discretionary decision not to exclude from the mandated procedure to consider the economic and other impacts of designation when making his exclusion decisions. The statute is, therefore, not “drawn so that a court would have no meaningful standard against which to judge the [Secretary’s] exercise of [his] discretion” not to exclude. Lincoln, 508 U. S., at 191. Weyerhaeuser’s claim–that the agency did not appropriately consider all the relevant statutory factors meant to guide the agency in the exercise of its discretion–is the sort of claim that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion. The Court of Appeals should consider in the first instance the question whether the Service’s assessment of the costs and benefits of designation and resulting decision not to exclude Unit 1 was arbitrary, capricious, or an abuse of discretion. Pp. 10–15.
827 F. 3d 452, vacated and remanded.
Roberts, C. J., delivered the opinion of the Court, in which all other Members joined, except Kavanaugh, J., who took no part in the consideration or decision of the case.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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