Endangered frog still in hot water -- Nov. 29, 2018 column

By MARSHA MERCER

The dusky gopher frog hopped into these pages in early October after its appearance, figuratively, before the Supreme Court.

The first oral argument of the term involved the endangered frog’s critical habitat, specifically the federal government’s responsibility under the Endangered Species Act to protect critical habitat versus landowners’ rights.

On Tuesday, the court issued a unanimous opinion in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service -- but did not settle the matter.

The justices sent the dispute, with instructions on two questions, back to the 5^th U.S. Circuit Court of Appeals in New Orleans, which had sided with the wildlife service in 2016.

So the frog is still in hot water.

To recap, the dusky gopher frog (Rana sevosa) historically lived in Louisiana but hasn’t been seen there since about 1965. The frog is named for the gopher tortoise holes where the mature frog lives.

Now found in only three places in Mississippi, the frog was declared endangered in 2001, and the wildlife service designated 1,544 acres in St. Tammany Parish as critical habitat in 2012.

The landowners want to develop the property, and the government and environmentalists want to preserve the land in case it’s needed to save the species.

The case became a cause celebre for property rights advocates who accuse the government of a land grab. The landowners claimed a Supreme Court win.

“In a word: elated. It’s a great victory for our side,” Edward Poitevent whose family has owned the land for generations, told the Associated Press. Weyerhaeuser Co. also owns a part and grows commercial timber there.

Environmentalists were disappointed, but “the ruling doesn’t weaken the mandate to protect habitat for endangered wildlife,” said Collette Adkins of the Center for Biological Diversity.

The case is important because it may signal courts are willing to slow Trump Administration efforts to weaken the Endangered Species Act. Separate efforts by House Republicans to rewrite the species law seem doomed now that Democrats have regained control of the House, but that doesn’t stop the administration’s action.

In oral arguments, three of the four conservative justices seemed sympathetic to the landowners, and Justice Clarence Thomas asked no questions. The four liberal justices seemed sympathetic to saving the frog’s habitat.

Perhaps they agreed to disagree. The vote was 8 to 0 to send back the case. Justice Brett Kavanaugh, who was not yet on the court when the justices heard the arguments, did not participate in the case.

In the opinion, Chief Justice John G. Roberts Jr., seemed to appreciate the quirky critter.

“Warts dot its back, and dark spots cover its entire body. It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Less endearingly, it also secretes a bitter, milky substance to deter would-be diners,” Roberts wrote.

The chief also provided a grammar lesson: “Our analysis starts with the phrase ‘critical habitat.’ According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’ Adjectives modify nouns – they pick out a subset of a category that possesses a certain quality.”

Yes, but. The law also says unoccupied land can be habitat, as Roberts noted in this parenthetical sentence: “(Habitat can, of course, include areas where the species does not currently live, given that the statute defines critical habitat to include unoccupied areas.)”

The Supreme Court batted back to the lower court the warty issues of what constitutes habitat and the economic ramifications of designating the property as critical habitat. 

An economic impact report found the designation potentially could cost the landowners $33.9 million in lost development, but the government concluded the cost was not disproportionate considering the conservation benefits.

“The dusky gopher frog’s habitat protections remain in place for now, and we’re hopeful the 5^th Circuit will recognize the importance of protecting and restoring habitats for endangered wildlife to live,” said Adkins at the Center for Biological Diversity said.

At this point, the frog is in the 5th Circuit, but the prolonged legal battle means it could yet hop back to the Supreme Court.

©2018 Marsha Mercer. All rights reserved.

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Supremes take up case of endangered frog -- Oct. 4, 2018 column

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 5^th 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.

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