Dusky Gopher Frog’s Land Battle Hops to High Court

(U.S. Fish and Wildlife Service)

WASHINGTON (CN) — The Supreme Court took up a land battle Monday where 1,544 acres of privately owned Louisiana timberland were designated as critical habitat for the dusky gopher frog.

A species of which there were only about 100 left in the wild when habitat protections were established in 2012, the frog is found only in Mississippi but the Louisiana land contains historic breeding sites and habitat-friendly ponds.

Apart from the land in St. Tammany Parish, Louisiana, a little less than 5,000 acres in three counties of Mississippi were also designated as habitat for the frog.

Weyerhaeuser Company holds a long-term timber lease on all of the St. Tammany Parish land in question. In addition to timber operations, Weyerhaeuser and other landowners intend to use the land for residential and commercial development. Weyerhaeuser’s lease is not set to expire until 2043, but a federal judge rejected the landowner’s case at summary judgment.

After the Fifth Circuit affirmed 2-1, the full federal appeals court refused last year to hold a rehearing en banc.

Weyerhaeuser then turned to the Supreme Court, which granted the company a writ of certiorari on Monday. Per its custom, the court did not issue any comment on its order.

Weyerhaeuser meanwhile emphasized that its challenge has no bearing on its support of species conservation.

“We currently participate in 10 habitat-conservation plans, candidate conservation agreements and safe harbor agreements across our landscape, and we are in active negotiations to protect additional species,” Weyerhaeuser spokeswoman Nancy Thompson said in a statement. “However, in this case, designation was applied to a tract of land where the species has not been present for decades, and where the specific habitat conditions it requires do not exist. We applaud the court for taking up this case, and we’re hopeful the outcome will ensure that a designation cannot be made to an area without firm evidence that it will support the endangered or threatened species in question.”

No other case was granted certiorari this morning, which was announced three hours before the federal government reopened after a weekend shutdown. Federal courts have about three weeks of funding to operate after a shutdown.

Weyerhaeuser is represented by attorneys at Mayer Brown.

The Center for Biological Diversity and the Gulf Restoration Network have intervened in the case on behalf of U.S. Fish and Wildlife.

“We’re disappointed that the Supreme Court has taken up the case but confident that the justices will ultimately uphold the frog’s habitat protections,” Center for Biological Diversity attorney Collette Adkins said in a statement. “The Fish and Wildlife Service followed the unanimous advice of frog experts in deciding to protect essential habitat of these critically endangered frogs.”

Cynthia Sarthou, executive director of the Gulf Restoration Network, also voiced disappointment in the cert grant. “The Supreme Court’s ruling is bad news for these endangered frogs,” Sarthou said in a statement. “This lawsuit attempts to gut essential habitat protections for the frog. For too long the U.S. Fish and Wildlife Service has had to focus its limited resources on defending this decision rather than recovering the frogs and restoring their habitat.”

Representatives for the U.S. solicitor general  have not returned an email seeking comment.

The Poitevent family and other Louisiana landowners impacted by the habitat designation are represented in the case by the Pacific Legal Foundation.

“The Supreme Court was correct to take this case, because the landowners here are victims of a shocking abuse of federal power,” Mark Miller, a senior attorney with the foundation, said in a statement. “If bureaucrats can label any area as protected habitat, even where the species does not exist and where the property can’t be used for the species’ conservation, there is no limit to the land that federal regulators can grab.”

Edward B. Poitevent II is also quoted in the statement. “We are asking the justices to rescue us from irrational, oppressive overreach by an unaccountable bureaucracy,” he said.

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