What Is Habitat?

Abstract

This short essay summarizes and assesses the recent Supreme Court opinion in Weyerhaeuser v U.S. Fish & Wildlife Service, which involved a landowner challenge to FWS's decision to designate an area of land as "critical habitat" under the Endangered Species Act notwithstanding the area could support the species in question only after significant habitat restoration. The ESA allows unoccupied areas to be designated as critical habitat, but is silent on the question of unoccupiable but restorable habitat. Rather than reach that question, the Court ruled that it must first be determined than an area is a species' "habitat" before it can be designated as critical habitat, a finding that neither the FWS nor the lower courts made. Yet, neither the statute, FWS regulations and policies, nor case law define "habitat" for purposes of the ESA. The essay closes with suggestions for doing so.

Keywords: Endangered Species Act, critical habitat, habitat, Weyerhaeuser