WASHINGTON (CN) - Dealing a blow to a critically endangered species of frog, the Supreme Court revived a lawsuit Tuesday brought by landowners whose logging deals could earn them millions.
“The dusky gopher frog once lived throughout coastal Alabama, Louisiana, and Mississippi, in the longleaf pine forests that used to cover the southeast,” Chief Justice John Roberts explained, joined in the ruling by all but Justice Brett Kavanaugh, who was confirmed to the bench days after the court heard oral arguments.
“But more than 98% of those forests have been removed to make way for urban development, agriculture, and timber plantations,” the 15-page opinion continues. “The timber plantations consist of fast-growing loblolly pines planted as close together as possible, resulting in a closed-canopy forest inhospitable to the frog. The near eradication of the frog’s habitat sent the species into severe decline. By 2001, the known wild population of the dusky gopher frog had dwindled to a group of 100 at a single pond in southern Mississippi.”
This lack of natural resources posed a hurdle for regulators as well when the Fish and Wildlife Service listed the dusky gopher frog as an endangered species and needed to designate a critical habitat. Though the service has since discovered two more naturally occurring populations of the frog, and it added a fourth population through translocation, Roberts emphasized that “the first population nonetheless remains the only stable one and by far the largest.”
Another factor that concerned regulators was that all four sites were located in two adjacent counties on the Gulf Coast of Mississippi — a circumstance that could put the entire species in jeopardy if those areas faced a bout of extreme weather or a disease outbreak.
Regulators in turn proposed to include a 1,544-acre site of land in St. Tammany Parish, Louisiana, as part of the frog’s critical habitat.
Though the site was once home to the last-known population of the frog outside of Mississippi, that was back in 1965, with no trace of the frog there since.
Today a closed-canopy timber plantation occupies much of the site, and it is undisputed that the government’s interference in its development could deprive private landowners of nearly $34 million.
“St. Tammany Parish is a fast-growing part of the New Orleans metropolitan area, and the land-owners have already invested in plans to more profitably develop the site,” Roberts added Tuesday.
To have the habitat designation vacated, these landowners teamed up with the Weyerhaeuser Company, a timber outfit to which they leased their land. They argued that habitat cannot include areas currently uninhabited by a species, but their case was unsuccessful in both District Court and the Fifth Circuit.
The Supreme Court vacated the underlying judgment, however, and remanded the case Tuesday for additional proceedings.
Going forward, Roberts instructed, the Fifth Circuit must interpret the term “habitat” in Section
4(a)(3)(A)(i) of the Endangered Species Act, which he noted is "the sole source of authority for critical-habitat designations." Another question the court must consider is whether, as Weyerhaeuser argues, the administrative record shows that the frog could not survive in the St. Tammany Parish site.
As for the challengers' economic claims — that the cost to landowners warranted an exclusion from designation — Roberts agreed that the Fifth Circuit failed to consider whether the government's assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision arbitrary, capricious, or an abuse of discretion.
"Accordingly, we remand to the Court of Appeals to consider that question, if necessary, in the first instance," the ruling concludes.
Timothy Bishop, an attorney for Weyerhaeuser with the Chicago firm Mayer Brown, forwarded a request for comment to Weyerhaeuser. In a statement this afternoon, a spokesman for the company emphasized that Weyerhaeuser “strongly supports species conservation and the Endangered Species Act.”
“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,” the statement continues. “We applaud the U.S. Supreme Court for its unanimous decision, upholding our stance that in order for land to be deemed critical habitat, it must first be a habitat, and that administrative designations like this are subject to judicial review. We remain hopeful that during this new review, the 5th U.S. Circuit Court of Appeals will rule to ensure a designation cannot be made to an area without firm evidence that it supports the endangered or threatened species in question.”
The nonprofit groups Gulf Restoration Network and the Center for Biological Diversity intervened in the case on behalf of the Fish & Wildlife Service, which is represented by the U.S. Solicitor General's Office.
Collette Adkins, an attorney for the Center for Biological Diversity who argued the case at the Supreme Court, meanwhile emphasized that efforts to sustain the dusky gopher frog are ongoing.
“While we’re disappointed, the ruling doesn’t weaken the mandate to protect habitat for endangered wildlife,” Center for Biological Diversity attorney Collette Adkins said in an email. “The dusky gopher frog’s habitat protections remain in place for now, and we’re hopeful the Fifth Circuit will recognize the importance of protecting and restoring habitats for endangered wildlife to live.”
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