Western Growers recently filed an amicus brief in support of petitioners in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, an Endangered Species Act case pending in the U.S. Supreme Court. Petitioners challenge a final rule issued by the U.S. Fish and Wildlife Service designating critical habitat for the dusky gopher frog, which was upheld by a divided panel (voting 2-1) of the United States Court of Appeals for the Firth Circuit. The gopher frog is endemic to areas of Mississippi and Louisiana. The Service designated certain areas as “critical habitat” for the species that are uninhabitable.
In upholding the Service’s determination, the Fifth Circuit deferred to the agency’s legal and technical determinations. Western Growers argued in an amicus brief filed together with the Coalition for a Sustainable Delta and San Luis & Delta Mendota Water Authority that the court went too far by affirming an agency decision to designate areas as “critical habitat” that are not, in fact, habitat for the species.
The case has important implications because, if upheld, it would stand for the proposition that the Service can designate any area as habitat for any endangered or threatened species so long as the area could someday be transformed into habitat.
Previously, Western Growers filed an amicus brief (successfully) supporting review of the case by the Supreme Court. Western Growers and the Coalition are represented in the litigation by Paul S. Weiland and Robert D. Thornton with Nossaman LLP.