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1 1 (December 19, 2018)

handle is hein.crs/govyxn0001 and id is 1 raw text is: Home is Where the Habitat is: Supreme Court Addresses Critical Habitat under the Endangered Species Act December 19, 2018 On November 27, 2018, in a unanimous decision, the Supreme Court held that only habitat of an endangered species can be designated as critical habitat under the Endangered Species Act (ESA). (Justice Kavanaugh did not participate in the decision.) The case, Weyerhauser Co. v. US. Fish and Wildlife Service, involved the Fish and Wildlife Service's (FWS's or Service's) decisions (1) to designate a 1,544-acre private property as critical habitat for the endangered dusky gopher frog, and (2) not to exclude the property from its critical habitat designation. The Court remanded the case to the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) to determine whether the private property was habitat for the frog and if the FWS abused its discretion when it decided not to exclude the property from the critical habitat designation. Although the Supreme Court did not define habitat under the ESA, its ruling is significant because it clarifies that, in order to be deemed critical habitat, an area must first meet the requirements to be deemed habitat for the endangered species. Further, the Court's decision opens the door to judicial review of the FWS's discretion not to exclude property from its critical habitat designations. This Sidebar explains the criteria for designating critical habitat under the ESA, reviews the critical habitat designation for the dusky gopher frog, and discusses the Weyerhauser Co. decision and the importance of the case moving forward. Designating Critical Habitat under the ESA Congress enacted the ESA to conserve endangered species and their habitats. For each species listed as threatened or endangered under the ESA, the Secretary of the Interior (through the FWS) must designate any habitat of such species which is then considered to be critical habitat. The ESA authorizes the FWS to designate two types of critical habitat: (1) specific areas within the geographical area occupied by the species, which contain the physical or biological features essential to the conservation of the species and may require special management protections (occupied habitat); and (2) areas outside the geographical areas occupied by the species if the Secretary determines that such unoccupied areas are essential for the conservation of the species (unoccupied habitat). Congressional Research Service https://crsreports.congress.gov LSB10234 CRS Legal Sidebar Prepared for Members and Committees of Congress

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