Dusky Gopher Frog Case Lives On
Late last year, the U.S. Supreme Court issued a unanimous decision that was favorable to NAHB members in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, better known as the Dusky Gopher Frog case.
The Court found that an area of land is eligible for designation as “critical habitat” under the Endangered Species Act only if it is a habitat for listed species. And any decision not to exclude an area from critical habitat is subject to judicial review. The Court remanded the case to the Fifth Circuit to define the word “habitat.”
The Fifth Circuit then punted to the Fish and Wildlife Service (FWS) and tasked the very agency that lost the case with creating a new definition for “habitat.”
Concerned that a hard-fought victory at the Supreme Court might be upended by the FWS, NAHB proactively filed a coalition comment letter in April recommending a regulatory definition of “habitat.” Among other things, the letter suggests a definition that specifies that only those areas that are actually habitable at the time of critical habitat designation are “habitat,” an issue that was central to the case.
It is critically important that industry groups like NAHB stay involved in litigation even after cases are seemingly decided. In this case, the responsibility for redefining a litigated word resting with a losing party could undermine a unanimous Supreme Court decision.
Latest from NAHBNow
Land Development | Advocacy
Aug 14, 2026
Key Land-Use and Zoning Provisions in Landmark Housing Law
The newly enacted 21st Century ROAD to Housing Act directs the Department of Housing and Urban Development to develop voluntary federal guidelines for state and local zoning best practices. Although not mandatory, the guidelines will help shape how communities are evaluated for federal grants and give states a model for developing their own enabling legislation.
Economics
Aug 13, 2026
Construction Employment Rises Amid a Cooling Labor Market
The overall labor market continued to lose momentum in July, with nonfarm payrolls falling by 23,000 and previous job gains revised sharply lower.
Latest Economic News
Economics
Aug 13, 2026
Building Material Prices Show Growth In July
Residential building material prices, excluding energy, rose 0.4% in July and were up 5.0% from a year ago. Energy prices fell again in July but remained significantly higher than a year ago. Meanwhile, prices for services were down 0.3% over the month but were 6.2% higher than a year ago.
Economics
Aug 13, 2026
Homeownership Rate Edges Down to 65%
The latest homeownership rate declined to 65% in the second quarter of 2026, according to the Census’s Housing Vacancy Survey (HVS). The homeownership rate was unchanged from a year ago, and not statistically different than the rate in the first quarter of the year (65.3%).
Economics
Aug 12, 2026
Inflation Eased Slightly in July
Led by declines in gasoline and diesel prices, inflation eased for the second consecutive month after reaching a three-year high in May. As energy prices moderated, shelter resumed its role as the largest driver of headline inflation, accounting for one-third of the annual increase and over two-thirds of the monthly increase.