The U.S. Supreme Court kicked off its new term on Oct. 1 with oral arguments in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service. The case centers around whether and when the U.S. Fish and Wildlife Service (FWS) can designate land unoccupied by a threatened or endangered species as critical habitat for that species under the Endangered Species Act.

In this case, the FWS designated more than 1,500 acres of private land in Louisiana as critical habitat for the endangered dusky gopher frog, despite the fact that no frogs currently occupy the area and have not since 1965. Not only is the frog not present on the Louisiana property, the FWS has acknowledged that it could not survive on the property without modifications — referred to by FWS during oral argument as “reasonable efforts” — being made to support the frog’s survival on the property.

This case has significance not only for the interpretation of the agency’s authority under the Endangered Species Act, but also because of its implications for rule changes recently proposed by FWS relating to critical habitat designations.

To read the full article, go to Law360.