A unanimous Supreme Court on Tuesday ordered a lower court to review the feds’ designation of a patch of Louisiana timberland as a critical habitat for dusky gopher frogs — which don’t even live in the Bayou State.
The case involved a decision by the US Fish and Wildlife Service to designate about 1,500 privately owned acres in Louisiana as “critical habitat” for the endangered croakers, which live 50 miles away in neighboring Mississippi and haven’t been spotted in Louisiana since the 1960s.
Chief Justice John Roberts wrote that the lower court judges needed to reconsider the definition of “habitat” in the Endangered Species Act and whether it included areas like the Louisiana tract, which would need to be to be modified for the frogs to thrive there.
The vote was 8-0, with Justice Brett Kavanaugh abstaining because he wasn’t around for arguments in the case earlier this fall.
During those arguments, the court’s liberals seemed willing to buy the federal agency’s argument that the frogs — which live in a handful of well-tended ponds in the Mississippi woods — were in “serious risk of extinction.”
The liberals suggested the agency had not exceeded its authority in designating the property, owned by a family that leases its land to the timber giant Weyerhaeuser, as a “critical habitat” for the rare frogs’ survival.
Justice Elena Kagan asked whether the Louisiana land could be made into a suitable habitat for the frogs, The Washington Post reported at the time.
“To my mind, it is a counterintuitive result that the statute would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements in order to support the species,” she said.
The court’s conservatives were more concerned about the rights of the property owners.
The feds argued that the Louisiana property could make a suitable home because it has low-lying areas that fill up with water at certain times of the year — when the frog lays eggs — but then dry out.
But lawyer Timothy Bishop, representing Weyerhaeuser, said the law only allowed the government to designate land where the species could already live as critical habitats.
Bishop also said the government had estimated the land’s value could decline by $33 million if the government restrictions were allowed to stand.
“The immediate effect of this overlay of a critical habitat on this 1,500 acres is a diminution in value of tens of millions of dollars,” he said.
“Any buyer coming in will recognize that, down the road, they have to deal with the critical habitat designation.”
Justice Samuel Alito Jr. agreed with Bishop.
The question is not whether the frogs will become extinct, Alito said. “The question is, who is going to have to pay and who should pay for the preservation of this public good?” he asked, the paper reported.
With AP
