Dusky Gopher Frog Case Lives On

Codes and Standards

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.

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