Supreme Court Orders Review of Agency's Frog-Habitat Designation
28 November 2018 - 5:55AM
Dow Jones News
By Jess Bravin
WASHINGTON -- The Supreme Court gave Weyerhaeuser Co. another
chance Tuesday to possibly develop a Louisiana timber farm, which
could doom an endangered species of frog, telling a lower court to
review the government's decision to designate the land as critical
habitat.
The unanimous opinion, written by Chief Justice John Roberts,
held the hallmarks of a careful compromise on a case heard by an
eight-member court before the confirmation of Justice Brett
Kavanaugh.
At arguments Oct. 1, the court appeared split between
conservatives concerned with the income loss Weyerhaeuser could
suffer if construction were limited and liberals who reasoned the
Endangered Species Act is broad legislation intended to mitigate
the damage human encroachment inflicts on the environment.
Had the court split evenly, the dusky gopher frog's lower-court
victory would have been upheld. Justice Kavanaugh's record suggests
that should he hear such an issue, the amphibian would face an
uphill climb.
Tuesday's decision, based on procedural grounds, delays the
ultimate fate of the rural property in St. Tammany Parish, a New
Orleans suburb on the northeast shore of Lake Pontchartrain. Demand
for real estate there has grown as hurricanes and rising sea levels
drive residents from points south.
"While we're disappointed, the ruling doesn't weaken the mandate
to protect habitat for endangered wildlife," said Collette Adkins,
a Center for Biological Diversity attorney who argued for the
protections before the Supreme Court. "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."
A company spokesman couldn't immediately be reached.
Chief Justice Roberts wasn't wholly unsympathetic to the dusky
gopher frog, which once ranged across Alabama, Louisiana and
Mississippi but saw its numbers reduced by 2001 to a population of
100 in a single Mississippi pond as 98% of its forest habitat was
sacrificed to human development.
The frog "is noted for covering its eyes with its front legs
when it feels threatened, peeking out periodically until danger
passes," Chief Justice Roberts observed. "Less endearingly, it also
secretes a bitter, milky substance to deter would-be diners."
More to the point, the frog's life cycle requires ephemeral
ponds that are dry part of the year and an open-canopy forest. The
species had lived on the Weyerhaeuser property at least until 1965,
and the land retained many characteristics that would allow
rebuilding a population there, the U.S. Fish and Wildlife Service
found.
The critical-habitat designation, which doesn't directly affect
the landowner, limits federal agencies such as the Army Corps of
Engineers from issuing permits for development projects that could
harm the species.
The Fifth U.S. Circuit Court of Appeals, in New Orleans, found
that the critical-habitat designation couldn't be challenged in
court. The Supreme Court held otherwise Tuesday.
First, the justices said a lower court must examine whether the
property was habitat at all, since the frog doesn't now live there.
If it isn't even habitat, it hardly can qualify as critical
habitat, the court said.
Second, the lower court must consider the decision that the
potential economic costs to Weyerhaeuser weren't "disproportionate"
to the conservation benefits. The wildlife service found that the
property's owners could lose $20 million to $34 million if
development of part or all of the site were blocked.
Weyerhaeuser says those figures are low, and the Supreme Court
decided the company should have a chance to make its case in
court.
Write to Jess Bravin at jess.bravin@wsj.com
(END) Dow Jones Newswires
November 27, 2018 13:40 ET (18:40 GMT)
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