By MARSHA MERCER
As the Brett Kavanaugh saga played out, it was
reassuring to see the Supreme Court at work and focused on, of all things, the
fate of a frog.
This was not the Celebrated Jumping Frog of Calaveras
County made famous by Mark Twain but the endangered dusky gopher frog, now
found only in Mississippi. The frog gets its name from the gopher tortoise
holes where the mature frog lives.
The first oral argument of the court term Monday weighed
the federal government’s responsibility to protect critical habitat of an
endangered species under the Endangered Species Act against the rights of
landowners.
Historically the dusky gopher frog (Rana sevosa) lived in Louisiana but was
last seen there in the mid-1960s. It was declared endangered in 2001, and the
U.S. Fish and Wildlife Service designated 1,544 acres in St. Tammany Parish in
Louisiana as critical habitat in 2012.
The property has ephemeral or temporary ponds where
the frog could breed, making the land necessary as a Plan B should efforts to
save the frog in Mississippi fail, the government said.
But the land is a commercial tree farm, leased to
Weyerhaeuser Co., and thickly planted in loblolly pines. Gone are the canopy of
longleaf pines and the grassy understory the frog needs, but the government
says the land is “restorable with reasonable effort.”
The landowners, who want to develop the parcel, say
the critical habitat designation has cost them $34 million. After six years of
legal battles, the case, Weyerhaeuser Co.
v. U.S. Fish and Wildlife Service, landed
in the Supreme Court.
It’s risky to draw conclusions from questions at oral
arguments, but three of the four conservative justices seemed sympathetic to
the landowners who want the government to butt out. Justice Clarence Thomas, as
usual, asked no questions. The four liberals seemed sympathetic to saving the
frog.
But, Lisa Heinzerling, law professor at Georgetown
University Law Center, wrote in her analysis on Scotusblog.com: “It was not
even clear whether the justices were puzzling mainly over whether the Louisiana
parcel was `essential’ to the conservation of the frog or over whether it was
`habitat’ at all. The case seems more complicated after today’s argument than
it seemed before.”
The frog case came to the court as the Endangered
Species Act is under assault from President Trump and House Republicans.
The administration has proposed three changes in how federal
agencies implement the act. In a letter Sept. 24, three professional
organizations – the American Society of Mammalogists, Society for Conservation
Biology North America and American Ornithological Society wrote:
“We strongly believe that if these three proposals are
enacted, they will severely weaken protections for endangered and threatened
species and, counterproductively, could result in more extinctions of plants
and animals in the United States.”
House Republicans are pushing a package of bills they
say will “modernize” the act but which environmentalists say will ruin it.
The bills “undermine key provisions of the Endangered
Species Act and result in increased harm to protected species and their habitat,”
Robert G. Dreher of Defenders of Wildlife told a Sept. 26 hearing of the House
Committee on Natural Resources.
He called the
package “a prescription for extinction.”
But many Republicans, especially those from Western
states, view the act and other environmental laws as impediments to
development.
When his committee approved the bills, House Natural
Resources Chairman Rob Bishop, R-Utah, said “these bills honor our heritage,
lighten regulatory burdens for communities, increase transparency, and
strengthen relationships between states and the federal government. Ultimately,
these bills aim to bolster our country’s natural resources.”
The frog case reflects the importance of the swing
seat held for decades by Justice Anthony Kennedy. If the court splits
four-four, the 5th Circuit Court of Appeals decision in favor of the
Fish and Wildlife Service’s support for the frog would stand.
But once the ninth justice is confirmed, the court
could order new oral arguments. Conservative Kavanaugh likely would be the
swing vote.
And that is why those who care about a little frog may
be breathing a bit more easily -- but only for now.
©2018 Marsha Mercer. All rights reserved.
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