By MARSHA MERCER
As the Brett Kavanaugh saga played out, it was reassuring to see the Supreme Court at work and focused on, of all things, the fate of a frog.
This was not the Celebrated Jumping Frog of Calaveras County made famous by Mark Twain but the endangered dusky gopher frog, now found only in Mississippi. The frog gets its name from the gopher tortoise holes where the mature frog lives.
The first oral argument of the court term Monday weighed the federal government’s responsibility to protect critical habitat of an endangered species under the Endangered Species Act against the rights of landowners.
Historically the dusky gopher frog (Rana sevosa) lived in Louisiana but was last seen there in the mid-1960s. It was declared endangered in 2001, and the U.S. Fish and Wildlife Service designated 1,544 acres in St. Tammany Parish in Louisiana as critical habitat in 2012.
The property has ephemeral or temporary ponds where the frog could breed, making the land necessary as a Plan B should efforts to save the frog in Mississippi fail, the government said.
But the land is a commercial tree farm, leased to Weyerhaeuser Co., and thickly planted in loblolly pines. Gone are the canopy of longleaf pines and the grassy understory the frog needs, but the government says the land is “restorable with reasonable effort.”
The landowners, who want to develop the parcel, say the critical habitat designation has cost them $34 million. After six years of legal battles, the case, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, landed in the Supreme Court.
It’s risky to draw conclusions from questions at oral arguments, but three of the four conservative justices seemed sympathetic to the landowners who want the government to butt out. Justice Clarence Thomas, as usual, asked no questions. The four liberals seemed sympathetic to saving the frog.
But, Lisa Heinzerling, law professor at Georgetown University Law Center, wrote in her analysis on Scotusblog.com: “It was not even clear whether the justices were puzzling mainly over whether the Louisiana parcel was `essential’ to the conservation of the frog or over whether it was `habitat’ at all. The case seems more complicated after today’s argument than it seemed before.”
The frog case came to the court as the Endangered Species Act is under assault from President Trump and House Republicans.
The administration has proposed three changes in how federal agencies implement the act. In a letter Sept. 24, three professional organizations – the American Society of Mammalogists, Society for Conservation Biology North America and American Ornithological Society wrote:
“We strongly believe that if these three proposals are enacted, they will severely weaken protections for endangered and threatened species and, counterproductively, could result in more extinctions of plants and animals in the United States.”
House Republicans are pushing a package of bills they say will “modernize” the act but which environmentalists say will ruin it.
The bills “undermine key provisions of the Endangered Species Act and result in increased harm to protected species and their habitat,” Robert G. Dreher of Defenders of Wildlife told a Sept. 26 hearing of the House Committee on Natural Resources.
He called the package “a prescription for extinction.”
But many Republicans, especially those from Western states, view the act and other environmental laws as impediments to development.
When his committee approved the bills, House Natural Resources Chairman Rob Bishop, R-Utah, said “these bills honor our heritage, lighten regulatory burdens for communities, increase transparency, and strengthen relationships between states and the federal government. Ultimately, these bills aim to bolster our country’s natural resources.”
The frog case reflects the importance of the swing seat held for decades by Justice Anthony Kennedy. If the court splits four-four, the 5th Circuit Court of Appeals decision in favor of the Fish and Wildlife Service’s support for the frog would stand.
But once the ninth justice is confirmed, the court could order new oral arguments. Conservative Kavanaugh likely would be the swing vote.
And that is why those who care about a little frog may be breathing a bit more easily -- but only for now.
©2018 Marsha Mercer. All rights reserved.