Endangered Frog Takes Center Stage as Supreme Court Begins New Term

October 1, 2018 Updated: October 2, 2018

The federal government shouldn’t be allowed to limit development on private land to help save an endangered species when that species doesn’t actually live there, a lumber company told the Supreme Court on Oct. 1, in a property-rights case that’s being closely watched by environmentalists and conservative advocacy groups.

Environmentalist groups are on edge because though the high court rarely takes up cases involving the Endangered Species Act, it agreed Jan. 22 to hear the case on appeal from the New Orleans-based U.S. Court of Appeals for the Fifth Circuit, which ruled in favor of the U.S. Fish and Wildlife Service (FWS), an agency within the U.S. Department of the Interior.

If the court rules against the government, the power of federal bureaucrats to make such designations under the Endangered Species Act and impose restrictions on the use of privately owned land could be curtailed across the nation. It is unclear how the case will ultimately be decided.

Throughout the hearing, which largely consisted of back-and-forth discussions of the legal meaning of specific terms used in the Endangered Species Act, liberal justices peppered the lumber company’s lawyer with tough questions; conservative justices did the same to the lawyer representing the government.

In the case, lawyers for Seattle-based Weyerhaeuser Co. challenged the government’s critical-habitat designation for the dusky gopher frog, or Lithobates sevosus, an amphibian also known as the Mississippi gopher frog. There may be as few as 75 of these frogs in existence in the wild. It was officially listed as endangered under the Endangered Species Act on Dec. 4, 2001, according to the FWS.

The FWS wants to use existing ponds and dig new ones throughout the Deep South to give the frog a chance at survival. The plan is then to move some of the frogs to the new ponds and protect the land surrounding them. The landowners object because they won’t be able to use the lands in question, which have an economic value attached to them.

Weyerhauser Land

(Environmental Protection Agency, via Wikimedia Commons)

The case goes back to 2012 when the FWS used the Endangered Species Act to declare 6,477 acres in two states, including 1,500 acres in St. Tammany Parish, Louisiana, a “critical habitat” essential to the dusky gopher frog. The declaration followed the settlement of lawsuits filed by the Center for Biological Diversity and Friends of Mississippi Public Lands.

The 1,500 acres are owned by Weyerhaeuser and businessman Edward Poitevent. After almost losing the land during the Great Depression, Poitevent’s family signed a 90-year lease that allowed the land to stay in the family. In the 1990s, Weyerhaeuser took over the lease for its timber operations.

“By locking down land on behalf of a frog that doesn’t live there, the feds froze an estimated $34 million in economic activity,” according to the Pacific Legal Foundation, which represents Poitevent.

“Nor can Edward use his own land for anything else in the future—a literal death knell to his property rights. If overreaching government agents can do this to Edward, they can designate any piece of land a critical habitat for practically any animal. No one’s land is safe.”

Even though the frog is found only in Mississippi, the FWS designated the land as “critical habitat” in Louisiana on the theory that it may one day be inhabitable by the frog. The trial court upheld the FWS finding, and the Fifth Circuit did the same, saying the agency’s decision was entitled to deference because of the 1984 Chevron v. Natural Resources Defense Council decision. In Chevron, the Supreme Court held that courts have to “defer to an agency’s authoritative and reasonable interpretation of ambiguous language found within a statute it administers,” according to a case summary provided by the Supreme Court.

Weyerhaeuser attorney Timothy S. Bishop said Oct. 1 that the government’s proposal for the land in question is unfair to the company.

“If we need to apply for permits … we get to use 40 percent of the land for development and we have to turn 60 percent of it over for frog habitat,” Bishop told the justices. “We don’t think that that is an appropriate use of our land, given that this is not ‘habitat’ to begin with.”

Justice Stephen Breyer, a liberal, seemed somewhat sympathetic to Weyerhaeuser, asking rhetorically if, in addition to using ponds on the land in question to save the frogs, it would be reasonable “to build special hothouses in Nome, Alaska”?

“A decision resting on that strikes me as far-fetched, from a situation where all you have to do in addition is drain six inches of swamp” from a pond to make it hospitable to the frogs, he said.

Who Pays?

Associate Justice Samuel Alito poses during a group photograph at the Supreme Court building in Washington on Sept. 29, 2009. (Mark Wilson/Getty Images)

Justice Samuel Alito, a conservative, distilled the case during oral arguments, saying what the court was really deciding is which party should bear the costs involved in saving the endangered frog.

“Now, this case is going to be spun, we’ve already heard questions along this line, as a choice between whether the dusky gopher frog is going to become extinct or not,” Alito said. “That’s not the choice at all. The question is, who is going to have to pay and who should pay for the preservation of this public good?”

The head of a grassroots conservative group said endangered-species laws have long been abused.

“The only thing the Endangered Species Act has preserved is liberal power,” Donny Ferguson, president of Americans for a Better Economy, an Alexandria, Virginia-based nonprofit organization, told The Epoch Times.

“It seizes private property, destroys jobs and kills progress, while the data show it’s been a total failure at stopping the ongoing natural process of extinction. Any change to the Act that modernizes it helps, but we can’t embrace science and progress until it is repealed entirely.”

The Supreme Court began its new term shorthanded.

Normally nine justices hear oral arguments, but in the wake of Associate Justice Anthony Kennedy’s retirement July 31, there have been only eight justices. Brett Kavanaugh, President Donald Trump’s nominee to be the ninth justice, was approved 11 to 10 by the Senate Judiciary Committee on Sept. 28 but it is unclear when the full Senate will take up his nomination. After Sen. Jeff Flake (R-Ariz.) requested a fresh FBI investigation of uncorroborated allegations against Kavanaugh, the president asked the FBI to conduct a one-week “supplemental investigation” that “must be limited in scope.”

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