The court noted the arguments on both sides of this question, lobbed in an intriguing parenthetical ((“Habitat can, of course, include areas where the species does not currently live, given that the statute defines critical habitat to include unoccupied areas.)”), and sent the case back to the 5th Circuit with instructions to sort out the meaning of “habitat” and to “assess the Service’s administrative findings” on whether the frog could survive on the designated property. The Supreme Court did not answer the question that had most engaged the justices at oral argument: whether “habitat” includes areas that require some modification before they can support a sustainable population of the relevant species. It follows that ‘critical habitat’ is the subset of ‘habitat’ that is ‘critical’ to the conservation of an endangered species.” The court emphasized the provision of the act requiring the Fish and Wildlife Service to “designate any habitat of such species which is then considered to be critical habitat.” The first question concerned whether property can be “critical habitat” if it is not “habitat.” The landowners argued that the word “habitat” itself limits the service’s designations, alone and apart from the word “critical.” The Supreme Court accepted this argument, explaining: “Adjectives modify nouns – they pick out a subset of a category that possess a certain quality. The service declined to exclude the property in Louisiana from its designation of critical habitat, finding that the economic costs of the designation did not outweigh the conservation benefits. The service also found that, with reasonable efforts at restoration of the property, the property could support a transplanted population of frogs. The frog has not lived on this property for many years, but the service concluded that the property was essential to the conservation of the frog – and thus appropriately deemed critical habitat – because it contains high-quality ephemeral ponds of the kind the frog uses for breeding. The case involves the Fish and Wildlife Service’s designation, under the Endangered Species Act, of property in Louisiana as “critical habitat” for the dusky gopher frog. Chief Justice John Roberts’ opinion for the court appears calculated to decide just enough to justify shipping the case back to the lower court. Court of Appeals for the 5th Circuit to decide several questions not answered on the first go-round. In a mixed-bag ruling, a unanimous Supreme Court returned Weyerhaeuser Co.
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