Protected habitat on private land

1. An area is eligible for designation as critical habitat under §1533(a)(3)(A)(i) only if it is habitat for the species. That provision, the sole source of authority for critical-habit designations, states that when the Secretary lists a species as endangered he must also “designate any habitat of such species which is then considered to be critical habitat.” It does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species. The definition allows the Secretary to identify a subset of habitat that is critical, but leaves the larger category of habitat undefined. 2. The Secretary’s decision not to exclude an area from critical habitat under §1533(b)(2) is subject to judicial review. The Administrative Procedure Act creates a “basic presumption of judicial review” of agency action. Abbott Laboratories v. Gardner , 387 U. S. 136, 140. The Service contends that the presumption is rebutted here because the action is “committed to agency discretion by law,” 5 U. S. C. §701(a)(2), because §1533(b)(2) is one of those rare provisions “drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” Lincoln v. Vigil , 508 U. S. 182, 191. 827 F. 3d 452, vacated and remanded.

Result

Vacated

The Court read the Endangered Species Act to require an area to be habitat for a species before it can qualify as critical habitat. It also relied on the usual presumption that agency decisions can be reviewed in court when it allowed review of the Service’s choice not to exclude an area.

The Fifth Circuit will take up the case again under the Supreme Court’s rulings.