Courthouse Steps Decision: Weyerhaeuser v. United States Fish & Wildlife Service

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Edward Poitevent’s family has owned timber-rich land in Louisiana since Reconstruction. In the 1990s, Weyerhaeuser Company acquired a lease of the Poitevent property for its timber operations, and Weyerhaeuser also purchased a small piece of the land.

But, in 2012, under cover of the Endangered Species Act, the U.S. Fish and Wildlife Service designated more than 1,500 acres of this property owned by the Poitevent family and Weyerhaeuser a “critical habitat” for the endangered dusky gopher frog. That designation jeopardized development plans for the property that had been in place for years. In the landowners’ view, the designation amounted to a de facto uncompensated taking of the property for the frog

Moreover, no one in the state of Louisiana had spotted the frog in 50 years, and the frog would not survive on the property if it was moved to Louisiana. The only place the frog is found today is nearly 70 miles away from the property—in Mississippi. By locking down land on behalf of a frog that doesn’t - and cannot - live there because of the conditions of the property, the federal government - by its own admission - took an estimated $34 million in economic activity away from the Poitevents and Weyerhaeuser.

On November 27, 2018, the Supreme Court of the United States unanimously ruled that the Fish & Wildlife Service must show that “critical habitat” for an endangered species must in fact be habitat for a species before it can be designated as such. Moreover, in an important administrative law decision, the Court also held that the agency’s decision not to exclude the Poitevent and Weyerhaeuser property from the designation - despite the severe economic impact of the designation to the land owners - was judicially reviewable under the APA. The case is now remanded to the Fifth Circuit for it to consider anew in light of the High Court’s unanimous decision.


Mark Miller, Senior Attorney, Pacific Legal Foundation


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