586 U.S. ___ (2018)
v.
UNITED STATES FISH AND WILDLIFE SERVICE, ET AL. WEYERHAEUSER COMPANY, PETITIONER
Argued
October 1, 2018
ON
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
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:
1.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.
2. 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.
OPINION
ROBERTS CHIEF JUSTICE
The
Endangered Species Act directs the Secretary of the Interior,
upon listing a species as endangered, to also designate the
"critical habitat" of the species. A group of
landowners whose property was designated as critical habitat
for an endangered frog challenged the designation. The
landowners urge that their land cannot be critical
habitat because it is not habitat, which they
contend refers only to areas where the frog could currently
survive. The court below ruled that the Act imposed no such
limitation on the scope of critical habitat.
The Act
also authorizes the Secretary to exclude an area that would
otherwise be included as critical habitat, if the benefits of
exclusion outweigh the benefits of designation. The
landowners challenged the decision of the Secretary not to
exclude their property, but the court below held that the
Secretary's action was not subject to judicial review.
We
granted certiorari to review both rulings.
I
A
The
amphibian Rana sevosa is popularly known as the
"dusky gopher frog"-"dusky" because of
its dark coloring and "gopher" because it lives
underground. The dusky gopher frog is about three inches
long, with a large head, plump body, and short legs. Warts
dot its back, and dark spots cover its entire body. Final
Rule To List the Missisippi Gopher Frog Distinct Population
Segment of Dusky Gopher Frog as Endangered, 66 Fed. Reg.
62993 (2001) (Final Listing). It is noted for covering its
eyes with its front legs when it feels threatened, peeking
out periodically until danger passes. Markle Interests,
LLC v. United States Fish and Wildlife Serv., 827 F.3d
452, 458, n. 2 (CA5 2016). Less endearingly, it also secretes
a bitter, milky substance to deter would-be diners. Brief for
Intervenor-Respondents 6, n. 1.
The
frog spends most of its time in burrows and stump holes
located in upland longleaf pine forests. In such forests,
frequent fires help maintain an open canopy, which in turn
allows vegetation to grow on the forest floor. The vegetation
supports the small insects that the frog eats and provides a
place for the frog's eggs to attach when it breeds. The
frog breeds in "ephemeral" ponds that are dry for
part of the year. Such ponds are safe for tadpoles because
predatory fish cannot live in them. Designation of Critical
Habitat for Dusky Gopher Frog, 77 Fed. Reg. 35129-35131
(2012) (Designation).
The
dusky gopher frog once lived throughout coastal Alabama,
Louisiana, and Mississippi, in the longleaf pine forests that
used to cover the southeast. But more than 98% of those
forests have been removed to make way for urban development,
agriculture, and timber plantations. The timber plantations
consist of fast-growing loblolly pines planted as close
together as possible, resulting in a closed-canopy forest
inhospitable to the frog. The near eradication of the
frog's habitat sent the species into severe decline. By
2001, the known wild population of the dusky gopher frog had
dwindled to a group of 100 at a single pond in southern
Mississippi. That year, the Fish and Wildlife Service, which
administers the ...