[env-trinity] Justices punt dusky gopher frog case to lower court

[Tom Stokely]

Here’s another article with a link to the decision:

https://www.eenews.net/greenwire/stories/1060107447?#_=_
SUPREME COURT

Justices punt dusky gopher frog case to lower court

Ellen M. Gilmer, E&E News reporter
Published: November 27, 2018 at 10:40 AM
Dusky gopher frog.  John Tupy/Fish and Wildlife Service

The Supreme Court is sending the dusky gopher frog back to a lower court.

In a narrow opinion this morning, a unanimous bench ruled that the 5th U.S. Circuit Court of Appeals must grapple with the meaning of "habitat" to determine whether the Fish and Wildlife Service's efforts to protect land for the rare amphibian were overly broad.

Chief Justice John Roberts wrote that the Endangered Species Act, which governs the critical habitat designations at issue in the case, does not include a "baseline definition" of habitat.

The 5th Circuit must consider the definition to determine whether land protected for the dusky gopher frog meets the standard.

The Supreme Court also ruled that the 5th Circuit should review whether FWS properly considered the costs and benefits of its decision not to exclude a broad swath of private land in its critical habitat designation for the frog.

All seven other members of the court who heard the case signed on to the opinion. Justice Brett Kavanaugh, who was not confirmed in time for Oct. 1 oral arguments, did not participate.

The case — the first argued this term — deals with FWS's 2012 decision to include more than 1,500 acres of private land in Louisiana in a critical habitat designation for the frog. The warty amphibian was once common across the South but is now considered one of the 100 most endangered species in the world, with most individuals living around a single pond in Mississippi.

The private Louisiana land protected by FWS contains the types of ephemeral ponds perfect for the frog. But the private landowners and timber giant Weyerhaeuser Co., which harvests trees there, say the agency overstepped because the land is not habitable for the creature right now.

An eight-member court pushed lawyers for both sides to explain the limits of FWS's power and the value of the Louisiana land for the dusky gopher frog (Greenwire, Oct. 1).

The case is the biggest environmental dispute on the Supreme Court's calendar this term and has been watched closely by environmental groups and property rights advocates.
Twitter: @ellengilmer Email: egilmer at eenews.net
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