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Weyerhaeuser Company v. United States Fish and Wildlife Service, et al.

Paid petition · United States Court of Appeals for the Fifth Circuit, No. 14-31008 · judgment June 30, 2016

Decided · November 27, 2018
Pre-decision estimate: 2% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Questions presented

Congress enacted the Endangered Species Act to conserve "ecosystems upon which endangered species***depend." 16 U.S.C. § 1531(b). To that end, the Act requires the Secretary of the Interior to "designate any habitat of such species which is then considered to be critical habitat." Id. § 1533(a)(3)(A). "Critical habitat" may include areas "occupied by the species," as well as "areas outside the geographical area occupied by the species" that are determined to be "essential for the conservation of the species." Id. § 1532(5)(A). The Fish and Wildlife Service designated as critical habitat of the endangered dusky gopher frog a 1500- acre tract of private land that concededly contains no dusky gopher frogs and cannot provide habitat for them absent a radical change in land use because it lacks features necessary for their survival. The Service concluded that this designation could cost $34 million in lost development value of the tract. But it found that this cost is not disproportionate to "biological" benefits of designation and so refused to exclude the tract from designation under 16 U.S.C. § 1533(b)(2). A divided Fifth Circuit panel upheld the designation. The questions presented, which six judges of the court of appeals and fifteen States urged warrant further review because of their great importance, are:

  1. Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation.

  2. Whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

Counsel of record

For petitioner
Timothy S. Bishop
Mayer Brown, LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 3 conferences

Amicus briefs
12 cert-stage · 28 merits
(18 supporting pet./neither, 10 respondent)

Argument & decision

Argued October 1, 2018 — Timothy S. Bishop · Edwin S. Kneedler. Audio and transcript

Decided November 27, 2018. Opinion by Roberts, C.J..

Proceedings

  1. Aug 05 2019
    The record from the U.S.C.A. 5th Circuit has been returned.
  2. Jan 02 2019
    JUDGMENT ISSUED.
  3. Nov 27 2018
    Judgment VACATED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which all other Members joined, except Kavanaugh, J., who took no part in the consideration or decision of the case.
  4. Oct 25 2018
    Notice of Change of Address of Markle Interests, LLC, et al. not accepted for filing. (Document not of the type that is to be filed electronically -- October 31, 2018)
  5. Oct 01 2018
    Argued. For petitioner: Timothy S. Bishop, Chicago, Ill. For respondents: Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D. C.
  6. Sep 14 2018
    Record received from the U.S.D.C. Eastern Dist. of Louisiana. The record contained 1 box of 6 volumes of records and one volume of transcripts. Also received is on CD of manual attachment to document #60, the contents of the CD is electronic.
  7. Sep 07 2018
    Record received from the U.S. Fish and Wildlife Service, the record is electric.
  8. Aug 24 2018
    Motion for divided argument filed by respondents Markle Interests, LLC, et al. DENIED.
  9. Aug 13 2018
    Reply of petitioner Weyerhaeuser Company filed. (Distributed)
  10. Aug 13 2018
    Reply of respondent Markle Interests, LLC, et al. filed. (Distributed)
  11. Aug 08 2018
    Letter from the Solicitor General dated August 8, 2018 filed. (Circulated)
  12. Aug 08 2018
    Record for the U.S.C.A. 5th Circuit is electronic and located on PACER.
  13. Aug 07 2018
    Record requested from the U.S.C.A. 5th Circuit.
  14. Aug 03 2018
    CIRCULATED
  15. Jul 17 2018
    Application (18A58) granted by Justice Alito extending the time for respondents Markle Interests, LLC, et al. to a file reply brief on the merits until August 13, 2018.
  16. Jul 16 2018
    Motion of Markle Interests, LLC, et al. for an extension of time not accepted for filing. (July 16, 2018 - Resubmitted as an application)
  17. Jul 16 2018
    Application (18A58) of respondents Markle Interests, LLC, et al. to extend the time to file a reply brief on the merits from July 30, 2018 to August 13, 2018, submitted to Justice Alito.
  18. Jul 13 2018
    Application (18A52) granted by Justice Alito extending the time to file petitioner's reply brief on the merits until August 13, 2018.
  19. Jul 11 2018
    Application (18A52) of petitioner to extend the time to file a reply brief on the merits from July 30, 2018 to August 13, 2018, submitted to Justice Alito.
  20. Jul 10 2018
    Motion of Weyerhaeuser Company for an extension of time not accepted for filing. (July 13, 2018 - Resubmitted as an application.)
  21. Jul 09 2018
    SET FOR ARGUMENT on Monday, October 1, 2018.
  22. Jul 09 2018
    Opposition of petitioner Weyerhaeuser Company to motion for divided argument of respondents Markle Interests, LLC, et al. in support of petitioner filed.
  23. Jul 06 2018
    Brief amici curiae of Small Business Owners filed.
  24. Jul 06 2018
    Brief amici curiae of Defenders of Wildlife, et al. filed.
  25. Jul 06 2018
    Brief amicus curiae of Institute for Policy Integrity at New York University School of Law filed.
  26. Jul 06 2018
    Brief amici curiae of Former Department of the Interior Officials filed.
  27. Jul 06 2018
    Brief amici curiae of Gopher Frog Experts filed.
  28. Jul 06 2018
    Motion of respondents Markle Interests, LLC, et al. in support of petitioner for divided argument filed.
  29. Jul 05 2018
    Brief amici curiae of Scientists filed.
  30. Jul 05 2018
    Brief amici curiae of Economists and Law Professors filed.
  31. Jul 03 2018
    Brief amici curiae of Landowners filed.
  32. Jul 03 2018
    Brief amici curiae of The Evangelical Environmental Network, et al. filed.
  33. Jul 03 2018
    Brief amici curiae of Environmental Law Professors filed.
  34. Jun 29 2018
    Brief of Intervenor-respondents Center for Biological Diversity and Gulf Restoration Network filed.
  35. Jun 29 2018
    Brief of respondents United States Fish and Wildlife Service, et al. filed.
  36. May 04 2018
    Motion to extend the time to file respondents' briefs on the merits granted and the time is extended to and including June 29, 2018.
  37. May 02 2018
    Motion for an extension of time to file respondents' briefs on the merits filed.
  38. Apr 30 2018
    Brief amicus curiae of Energy and Wildlife Action Coalition filed.
  39. Apr 30 2018
    Brief amici curiae of American Exploration & Production Council, et al. filed.
  40. Apr 30 2018
    Brief amicus curiae of Chamber of Commerce of the United States of America filed.
  41. Apr 30 2018
    Brief amici curiae of Washington Legal Foundation, et al. filed.
  42. Apr 30 2018
    Brief amici curiae of National Conference of State Legislatures, et al. filed.
  43. Apr 30 2018
    Brief amicus curiae of The Cato Institute filed.
  44. Apr 30 2018
    Brief amicus curiae of San Jaun County, Utah filed.
  45. Apr 30 2018
    Brief amici curiae of The National Association of Home Builders, et al. filed.
  46. Apr 30 2018
    Brief amici curiae of Building Industry Legal Defense Foundation, et al. filed.
  47. Apr 30 2018
    Brief amici curiae of Brief of Alabama and 19 Additional States filed.
  48. Apr 30 2018
    Brief amici curiae of National Federation of Independent Business, et al. filed.
  49. Apr 30 2018
    Brief amicus curiae of Cause of Action Institute filed.
  50. Apr 30 2018
    Brief amici curiae of The American Farm Bureau Federation, et al. filed.
  51. Apr 27 2018
    Brief amicus curiae of Center for Constitutional Jurisprudence filed.
  52. Apr 27 2018
    Brief amicus curiae of St. Tammany Parish Government filed.
  53. Apr 27 2018
    Brief amicus curiae of Southeastern Legal Foundation filed.
  54. Apr 27 2018
    Brief amici curiae of Wyoming Stock Growers Association, et al. filed.
  55. Apr 26 2018
    Brief amici curiae of Coalition for a Sustainable Delta, et al. filed.
  56. Apr 23 2018
    Brief of petitioner Weyerhaeuser Company filed.
  57. Apr 23 2018
    Joint appendix filed (statement of cost filed).
  58. Apr 23 2018
    Brief of respondents Markle Interests, LLC, et al. in support of petitioner filed.
  59. Feb 02 2018
    Motion to extend the time to file the joint appendix and petitioner's brief on the merits granted and the time is extended to and including April 23, 2018.
  60. Feb 01 2018
    Blanket Consent filed by Respondents, Markle Interests, LLC, et al..
  61. Jan 30 2018
    Blanket Consent filed by Petitioner, Weyerhaeuser Company.
  62. Jan 30 2018
    Blanket Consent filed by Respondent, Intervenor-respondents Center for Biological Diversity and Gulf Restoration Network
  63. Jan 29 2018
    Blanket Consent filed by Respondent, United States Fish and Wildlife Service, et al.
  64. Jan 29 2018
    Motion for an extension of time filed.
  65. Jan 22 2018
    Petition GRANTED.
  66. Jan 16 2018
    DISTRIBUTED for Conference of 1/19/2018.
  67. Jan 08 2018
    DISTRIBUTED for Conference of 1/12/2018.
  68. Nov 29 2017
    DISTRIBUTED for Conference of 1/5/2018.
  69. Nov 29 2017
    Reply of petitioner Weyerhaeuser Co. filed. (Distributed)
  70. Nov 13 2017
    Brief of respondents Fish and Wildlife Service, et al. in opposition filed. VIDED.
  71. Nov 13 2017
    Brief of intervenor-respondents Center for Biological Diversity and Gulf Restoration Network in opposition filed. VIDED
  72. Oct 06 2017
    Order further extending time to file response to petition to and including November 13, 2017, for all respondents.
  73. Sep 07 2017
    Order further extending time to file response to petition to and including October 13, 2017.
  74. Aug 14 2017
    Brief amici curiae of Washington Legal Foundation, et al. filed. VIDED.
  75. Aug 14 2017
    Brief amicus curiae of Chamber of Commerce of the United States of America filed. VIDED.
  76. Aug 14 2017
    Brief amicus curiae of Energy and Wildlife Action Coalition filed.
  77. Aug 14 2017
    Brief amicus curiae of The Cato Institute filed. VIDED.
  78. Aug 14 2017
    Brief amici curiae of The National Association of Home Builders, et al. filed. VIDED.
  79. Aug 14 2017
    Brief amicus curiae of San Jaun County, Utah filed. VIDED.
  80. Aug 14 2017
    Brief amicus curiae of Center for Constitutional Jurisprudence filed. VIDED.
  81. Aug 14 2017
    Brief amicus curiae of Southeastern Legal Foundation filed. VIDED.
  82. Aug 14 2017
    Brief amici curiae of The American Farm Bureau Federation, et al. filed.
  83. Aug 14 2017
    Brief amici curiae of Alabama and 17 Additional States filed. VIDED.
  84. Aug 11 2017
    Brief amicus curiae of Mountain States Legal Foundation filed. VIDED.
  85. Aug 09 2017
    Order extending time to file response to petition to and including September 13, 2017, for all respondents
  86. Aug 09 2017
    Brief amicus curiae of St. Tammany Parish filed. VIDED.
  87. Aug 04 2017
    Blanket Consent filed by respondent- intervenors, Center for Biological Diversity and Gulf Restoration Network on 08/10/2017 VIDED
  88. Jul 26 2017
    Waiver of right of respondents Markle Interests, LLC; P & F Lumber Co., 2000, LLC; & PF Monroe Properties, LLC to respond filed.
  89. Jul 20 2017
    Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondent Markle Interests, LLC.
  90. Jul 18 2017
    Consent to the filing of amicus curiae briefs, in support either party or of neither party, received from counsel for petitioner.
  91. Jul 11 2017
    Petition for a writ of certiorari filed. (Response due August 14, 2017)
  92. Jun 09 2017
    Application (16A916) granted by Justice Thomas extending the time to file until July 13, 2017.
  93. Jun 06 2017
    Application (16A916) to extend further the time from June 29, 2017 to July 13, 2017, submitted to Justice Thomas.
  94. Mar 27 2017
    Application (16A916) granted by Justice Thomas extending the time to file until June 29, 2017.
  95. Mar 21 2017
    Application (16A916) to extend the time to file a petition for a writ of certiorari from May 14, 2017 to June 29, 2017, submitted to Justice Thomas.