Attorney Vows Frog Habitat Battle Headed for Supreme Court

NEW ORLEANS (CN) – Advocates for the dusky gopher frog have successfully blocked a $34 million land development project in Louisiana that they said would imperil the endangered amphibian.

But the attorney for the land over says it may be only a temporary reprieve as he intends to appeal to the U.S. Supreme Court.

Last year, a three-judge panel of the Fifth Circuit rejected an attempt by a Louisiana business to keep the federal government from listing its timberland property as an essential habitat for the frog.

On Monday, the full court voted 8-6 against rehearing the case.

The dusky gopher frog lives in coastal forests and freshwater marshes. Although it once was widely found in Louisiana, Mississippi and Alabama, today it is only found in isolated parts of Mississippi.

Environmentalists say the Louisiana land owned by Markle Interests LLC contains a type of pond that’s critical to the species’ survival.

The majority offered no comment on its Feb. 13 decision.

However, U.S. Circuit Judge Edith Jones, writing for the minority, strongly rebuked the judges in the majority, saying they misapplied federal law.

Jones maintains the habitat in question has some features deemed necessary for the frog’s survival, but far from all.

She said the decision “costs the Louisiana landowners $34 million in future development opportunities,” adding that “the ramifications of this decision for national land use regulation and for judicial review of agency action cannot be underestimated.”

“She agreed with us that non-habitat can never be critical habitat,” Reed Hopper, an attorney for the Pacific Legal Foundation, which represents Markel Interests, told the Associated Press that Judge Jones’s dissent reflected his client’s position throughout the case.

He also said he’s already working on an appeal of the Fifth Circuit’s ruling to the U.S. Supreme Court.

In an opinion handed down last June, U.S. Circuit Judge Stephen Higginson wrote for the majority that the federal government acted within the Endangered Species Act, the National Protection Act and the Constitution when it sought to protect the land.

Higginson wrote that the opposition’s interpretation of the Endangered Species Act is incorrect because the statute “requires the [United States Fish and Wildlife] Service to designate ‘essential’ areas, without further defining ‘essential’ to mean ‘habitable.’”

Environmental groups praised the Fifth Circuit’s decision not to disturb that ruling.

“The dusky gopher frog is on the brink of extinction and desperately needed today’s good news,” Collette Adkins, a Center for Biological Diversity attorney said in a news release Monday. “I hope today’s ruling finally convinces the landowners to stop challenging the frog’s protections and instead cooperate with habitat restoration and frog reintroduction.”