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Article: La., U.S. Supreme Courts Weigh In By Not Weighing In on Highly Watched Cases

S. Beaux Jones -  Posted on by Baldwin, Haspel, Burke & Mayer

Published in Louisiana Bar Journal Vol. 66, No. 5.

Bayou Canard, Inc., v. State, through Coastal Prot. & Restoration Auth., 18-0095 (La. 10/29/18), 254 So.3d 1209 (denying writ).

As discussed in the August/September 2018 Louisiana Bar Journal, the Louisiana 1st Circuit Court of Appeal overturned the 19th Judicial District Court and found that the indemnity language in all state-issued oyster leases barred leaseholders from bringing suits against the state even for challenges to the administrative process. Bayou Canard, Inc. v. State, 17-1067 (La. App. 1 Cir. 5/14/18), 250 So.3d 981. Previously, the indemnity clauses had been stretched to cover only physical losses rather than claims challenging a state agency’s administrative procedure (the Coastal Protection and Restoration Authority’s (CPRA) application of the Oyster Lease Acquisition and Compensation Program prior to conducting a restoration project in Bayou Canard). The 1st Circuit’s decision was a resounding victory for the CPRA and solidified the state’s indemnity for suits brought by oyster-lease holders, which have at times been at odds with coastal restoration efforts. See, Avenal v. State, 03-3521 (La. 10/19/04), 886 So.2d 1085.

Bayou Canard, Inc. applied for a writ to the Louisiana Supreme Court on June 13, 2018. On Oct. 29, 2018, the Louisiana Supreme Court denied the application, thereby leaving the 1st Circuit decision unchanged.

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S.Ct. 361 (2018).

In this highly publicized case centered in St. Tammany Parish around the historic and potentially future home of the dusky gopher frog (Rana sevosa), the U.S. Supreme Court waded yet again into the timeless environmental law tussle between private property rights and the federal government’s authority over property. In particular, a group of landowners sued the U.S. Fish and Wildlife Service (FWS) who, acting under the color of the Endangered Species Act (ESA), designated a portion of private property slated for development as “critical habitat” for the rare amphibian. Although likely part of its historic range, FWS acknowledged that the 1,500 acres in Louisiana did not presently support a population of frogs. Rather, the agency posited that the land was prime for future expansion of the frog’s habitat.

A group of landowners led by Weyerhaeuser Co. challenged the FWS decision at the U.S. 5th Circuit Court of Appeals in Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452 (5 Cir. 2016) (the previous styling of the Weyerhaeuser case), which found that even though the amphibians did not currently live in Louisiana, the FWS designation was not arbitrary and capricious and was within the limits of its statutory authority. The Supreme Court granted certiorari in January 2018 to review the 5th Circuit’s decision. Although covering many legal and factual issues, the arguments on appeal were focused on what became known as the “habitability requirement” or whether the ESA could be applied to property that was not currently habitat for a protected species.

Arguments were held on Oct. 1, 2018, and on Nov. 27, 2018. The Court issued a unanimous 8-0 ruling (Justice Kavanaugh took no part) authored by Chief Justice Roberts vacating the 5th Circuit’s decision and remanding the case for further proceedings. In its decision, the Court first addressed the habitability question and held that “[a]n area is eligible for designation as critical habitat under [the ESA] only if it is habitat for the species.” Weyerhaeuser, 139 S.Ct. at 369 n.2. This finding seemingly mirrored the petitioners’ argument that for a place to be critical habitat, it must first be habitat. At the argument, FWS did not dispute this grammatical truism; instead, the agency argued that the definition of habitat should include those areas imbued with special features requisite for a species’ habitat that could support the species with “some degree of modification to support a sustainable population of a given species.” Id. at 369. However, stopping shy of a clear win for the landowners, the Court noted that the 5th Circuit did not interpret the term habitat or review FWS’ administrative findings to that point. Accordingly, the Court vacated the decision and remanded to the U.S. 5th Circuit to explicitly consider what constitutes habitat under the ESA and what FWS’ findings are regarding the same.

In addition to the habitability question, the Court also addressed the petitioners’ additional argument that FWS did not appropriately consider all relevant statutory factors when balancing the costs and benefits of the restrictions placed on the property by the critical habitat designation. The remand decision also contained instructions for the 5th Circuit to consider whether FWS’ assessment of the costs and benefits was arbitrary and capricious, which was not done before.



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