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Stephon B. Bagne

Member, Clark Hill PLC

Phone: (313) 965-8897

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Stephon B. Bagne’s expertise in representing property owners in condemnation cases is widely recognized. Stephon has represented all types of property owners in a variety of situations including vacant and improved property, partial and total takings, easement and fee acquisitions, involving commercial and residential properties. He has won jury trials in courts throughout the State of Michigan and successfully defended those verdicts before the Michigan Court of Appeals. Stephon has prevailed in challenges of the necessity of takings and negotiated less onerous acquisitions in partial taking matters. He regularly speaks and writes about eminent domain and other real estate law issues for a variety of professional organizations. For a more complete bio, please click here.





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SCOTUS Limits Endangered Species Habitat Designations and Mandates Judicial Review of Administrative Decisions

The United States Supreme Court ruled in favor of a property owner against the United States Fish and Wildlife Service.

On November 27, 2018, SCOTUS issued Weyerhaeuser Company v. United States Fish and Wildlife Service, 586 U.S. ___ (2018). 

Fish and Wildlife Service administers the Endangered Species Act of 1973 on behalf of the Secretary of the Interior. The Service designated the dusky gopher frog as an endangered species in 2001. As part of the Act, the habitat of the species was required to be identified. The Service designated over 1,500 acres of private property owned by a lumber company as the habitat, precluding economic use of the property. In doing so, the Service was required to evaluate the economic impact of its decision.

The endangered frog did not actually live on the property. Its habitat had shrunk to a small area in Mississippi, although it had resided on the property at some point in the 1960s.

SCOTUS overturned the Service's designation of the property. At the time of the designation, the property was not only uninhabited by the frog, it was uninhabitable. “Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.” 

SCOTUS also rejected the Service's position that the property owner could not seek judicial review of its economic analysis. “Weyerhaeuser contends that the Service ignored some costs and conflated the benefits of designating Unit 1 with the benefits of designating all of the proposed critical habitat. This is the sort of claim that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion.”

The opinion is relatively narrow in scope. The Service may still designate properties as habitat for endangered species and limit the development of them, although, in order to do so, the species must actually be using it for habitat. The larger development is the rejection of the Service’s position that its internal evaluation of statutory criteria was not subject to judicial review (even if that review is limited to a finding of an abuse of discretion). 

The case does not address the general standards for establishing a regulatory taking. All property is subject to some regulation by the government, with the extent of that regulation limited by the Fifth Amendment. 

The Supreme Court reached its decision unanimously. The full opinion can be read here.

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