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Management Side
Justices Appear Divided Over Protecting Endangered Frog's Habitat

WASHINGTON (From news reports) - A small frog created a big stir at the Supreme Court Monday, where Justices weighed how far the federal government can go to protect the habitat of an endangered creature, even if that creature may never call that habitat home.

The amphibian in question is the dusky gopher frog. Measuring three inches long, it mates twice a year in something known as an ephemeral pond, or temporary wetland which sees water levels rise and lower with the rain.

The ponds are rare and ideal for the frogs since predators are minimal.

The frog was thought to be extinct until a stable population was discovered over a decade ago at the De Soto National Forest in Mississippi.

In 2001, the U.S. Fish and Wildlife Service declared the frog endangered and in 2012, the agency moved to protect its habitat by designating 1,544 acres in Louisiana's St. Tammany Parish as critical habitat.

The designation was challenged in federal court by the 100-year old logging giant, Weyerhaeuser Company, and several individuals who also own portions of the land. The agency claimed Weyerhaeuser lacked standing to challenge the Endangered Species Act's requirements and a district court later ruled in their favor.

When the case made it to the Fifth Circuit, a divided panel found Weyerhaeuser had standing because it was injured: the designation throttled their use to the land and if allowed to stand, could cost the company millions.

Arguing on behalf of Weyerhaeuser Monday, attorney Timothy Bishop of the Chicago-based firm Mayer Brown, told Supreme Court justices the designation was an overreach because the frog hasn't lived in Louisiana since the 1960s.

The notion of creating protections for an unoccupied habitat not only encroaches on Weyerhaeuser but on future developers interested in the land.

Justice Elena Kagan challenged Bishop's definition of habitat. Under the Endangered Species Act, habitat is a place not only where species actually lives but where it could live.

Bishop said even if this were the case, the tract of land in question simply isn't "optimal" for the frog's survival. Besides the unique ponds, the frogs also need open canopy forest where sunshine and trapped moisture sustain the creature.

Scientific evidence, Justice Sonia Sotomaor said, indicates the frogs could potentially survive in tandem with the loggers land use, since the amphibians can also thrive where tree stumps are prevalent.

Justice Ruth Bader Ginsberg appeared to agree with Sotomayor. The frogs can sustain themselves - "albeit not robustly. Further, she said, under ESA, Weyerhaeuser is "not commanded to do anything at all."

"You can continue the ... timber farming ... Now it may be that down the road you will want to do something else with the land but wouldn't that be the appropriate time to seek exclusion?" Ginsburg said.

Sotomayor asked Bishop if it made more sense to remand the case back to a lower court if Weyerhaeuser took issue with the "minimal requirements for habitat."

Bishop agreed a remand "might be appropriate," prompting Justice Neil Gorsuch to consider whether the issue fell under the discretion of the secretary of the Department of the Interior, who oversees FWS.

The secretary already weighed economic benefits exclusion to the land, and found that, compared to inclusion, the results were "indeterminate."

"I suppose there's some judicial review possible here but do we need to get into how many angels dance on the head of that pin, if you've got no real complaint at the end of the day with the [Interior Secretary's] position?" Gorsuch asked.

Bishop again said a remand may help Weyerhaeuser "explore that."

Chief Justice Roberts pressed Deputy Solicitor General Edwin Kneedler, who represented the agency, about other potential issues on remand, like the bill's use of the word "reasonable" when designating habitats.

"What's the limit? You could require ... a piece of property in Canada, that would accommodate the species so long as you invested $100 million to put in ephemeral ponds or change [the trees to accommodate the frogs]?" Roberts said.

Justice Samuel Alito agreed, telling Kneedler the FWS may need to provide "some definition of reasonable restoration."

"This case is going to be spun ... as a choice between whether the dusky gopher frog is going to become extinct or not but 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?" Alito said.

While it "may be difficult for a lot of people to shed tears for a big corporation like the one in this case," Alito added, what happens when it's a family farm who has its land designated, or "a good part of it" for critical habitat?

Kneedler instead returned to necessity of the habitat for the species - which take 195 days to gestate - but Chief Justice Roberts pursued Alito's point.

"It's still the case that [requiring] the consent of the owners and they aren't going to do it. You can't require them to do it, right?" Roberts said.

Kneedler conceded FWS could not, but the facts around what constitutes a habitat remain, he said.

"The service looks at it and says: if this species is going to be conserved, in fact, if this species is going to survive at all and not go extinct, it is essential to use these ponds," he said.

On rebuttal, Bishop said even if Weyerhaeuser acquiesced to portions of the critical habitat designations, it would still infringe on the loggers' land use since they would be forced to "totally change the way the land operates in order to accommodate the frog."

"This is not a property on which there will be any groundcover to supply moisture or food or cover for these frogs," he said.

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