Dusky Gopher Frog Case Lives On

Codes and Standards
Published

Late last year, the U.S. Supreme Court issued a unanimous decision that was favorable to NAHB members in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, better known as the Dusky Gopher Frog case.

The Court found that an area of land is eligible for designation as “critical habitat” under the Endangered Species Act only if it is a habitat for listed species. And any decision not to exclude an area from critical habitat is subject to judicial review. The Court remanded the case to the Fifth Circuit to define the word “habitat.”

The Fifth Circuit then punted to the Fish and Wildlife Service (FWS) and tasked the very agency that lost the case with creating a new definition for “habitat.”

Concerned that a hard-fought victory at the Supreme Court might be upended by the FWS, NAHB proactively filed a coalition comment letter in April recommending a regulatory definition of “habitat.” Among other things, the letter suggests a definition that specifies that only those areas that are actually habitable at the time of critical habitat designation are “habitat,” an issue that was central to the case.

It is critically important that industry groups like NAHB stay involved in litigation even after cases are seemingly decided. In this case, the responsibility for redefining a litigated word resting with a losing party could undermine a unanimous Supreme Court decision.

Subscribe to NAHBNow

Log in or create account to subscribe to notifications of new posts.

Log in to subscribe

Latest from NAHBNow

Awards | IBS

Feb 19, 2026

NAHB Announces 2025 Best in American Living Awards Winners

The National Association of Home Builders (NAHB) announced the winners of the 2025 Best in American Living™ Awards (BALA) during the NAHB International Builders’ Show in Orlando. The awards are sponsored by Smeg.

IBS

Feb 19, 2026

NAHB Honors the Industry’s Top Achievements at The Nationals

The National Association of Home Builders (NAHB) honored top achievements in residential real estate sales, marketing, individual achievement and global excellence at The Nationals℠ Awards Gala (sponsored by Chase) during the NAHB International Builders’ Show in Orlando. Awards were also presented for the 55+ housing, NAHB Honors and Global Innovation award categories.

View all

Latest Economic News

Economics

Feb 19, 2026

Delinquency Rates Normalize While Credit Card and Student Loan Stress Worsens

Delinquent consumer loans have steadily increased as pandemic distortions fade, returning broadly to pre-pandemic levels. According to the latest Quarterly Report on Household Debt and Credit from the Federal Reserve Bank of New York, 4.8% of outstanding household debt was delinquent at the end of 2025, 0.3 percentage points higher than the third quarter of 2025 and 1.2% higher from year-end 2024.

Economics

Feb 18, 2026

Overall Housing Starts Inch Lower in 2025

Despite a strong finish in December, single-family home building dipped in 2025 as persistent affordability challenges continued to weigh on the market.

Economics

Feb 18, 2026

How Housing Affordability Conditions Vary Across States and Metro Areas

The NAHB 2026 priced-out estimates show that the housing affordability challenge is widespread across the country. In 39 states and the District of Columbia, over 65% of households are priced out of the median-priced new home market. This indicates a significant disconnect between higher new home prices, elevated mortgage rates, and household incomes.