More on the frog Supreme Ct. case (designation of critical habitat)

...A federal district court in Louisiana rejected the landowners challenge to the critical habitat designation, as did a divided panel of the U.S. Court of Appeals for the Fifth Circuit. A petition for rehearing en banc was rejected 8-6, over a forceful dissent by Judge Edith Jones. Now the landowners are seeking Supreme Court review, and the Court is due to consider the petitions on Friday.
Petitions for certiorari have been filed by the Pacific Legal Foundation (on behalf of several of the landowners) and Weyerhaeuser Co. Quite a few amici have filed in support of the petitions too. (See the brief listings here.) In many respects, Judge Jones' dissent from denial of rehearing en banc could be seen as petition for certiorari all its own.
Judge Jones first argued that critical habitat must be habitable.

No one disputes that the dusky gopher frog cannot inhabit Unit 1. The panel majority find that fact irrelevant, however, because looking only at the statute's definitional section, the ESA does not appear to require that a species actually be able to inhabit its "unoccupied critical habitat." They dismiss habitability as an "extra-textual limit" that cannot be found in either "the text of the ESA or the implementing regulations." . . . Read in context, however, the ESA makes clear that a species' critical habitat must be a subset of that species' habitat. The ESA's implementing regulations are consistent with this subset arrangement. Further, when Congress got around to clarifying critical-habitat regulation in 1978, the contemporary understanding of critical habitat, shared alike by the most fervent proponents and opponents of wildlife and habitat protection, was that it meant a part of the species' actual habitat.

Judge Jones further argued that accepting the FWS interpretation of its own authority would, in practice, make it easier to designate unoccupied land as critical habitat than to designate land actually inhabited by the species in question. Such a construction, Judge Jones noted, would make no sense. Fortunately, no such construction is required by the ESA's text. To the contrary, Judge Jones argued, the ESA's "text, drafting history, and precedent" all "confirm the commonsense notion that the test for unoccupied critical habitat is designed to be more stringent than the test for occupied critical habitat."
A third problem with the panel decision identified by Judge Jones was its conclusion that the FWS' refusal to exclude Unit 1 from the critical habitat designation was unreviewable. This conclusion, Judge Jones noted, seems to "clash" with the Supreme Court's holding in Bennett v. Spear that the FWS is required to consider the economic impact of a critical habitat designation and that the failure to do so is subject to judicial review.
In simplest terms, Markle Interests LLC v. FWS (aka Weyerhaeuser v FWS) asks the Court to decide whether land must, in fact, be habitable, if not actually inhabited, by an endangered species. It also implicates broader questions about the scope of federal regulatory authority over private land. Regulation of endangered species habitat may (or may not) be justified as a "necessary and proper" to the regulation of commerce among the states, but it's hard to see how such authority can reach land that has no clear or direct connection to such species (a point made by the Cato Institute in a separate amicus brief)...

From  Can Land Uninhabitable by an Endangered Species Nonetheless Be 'Critical Habitat' Under the Endangered Species Act?