US Supreme Court ruling in frog case highlights debate over definition of

first_img U.S. Department of Agriculture/Wikimedia Commons (CC BY 2.0) By Ellen M. Gilmer, E&E NewsNov. 28, 2018 , 3:55 PM Originally published by E&E NewsThe dusky gopher frog’s long legal journey isn’t over yet.The U.S. Supreme Court yesterday remanded a closely watched dispute over the federal government’s power to designate certain critical habitat for the rare southern amphibian. Click to view the privacy policy. Required fields are indicated by an asterisk (*) U.S. Supreme Court ruling in frog case highlights debate over definition of ‘habitat’ Read more… The endangered dusky frog is at the center of a high-profile legal dispute. Email Country * Afghanistan Aland Islands Albania Algeria Andorra Angola Anguilla Antarctica Antigua and Barbuda Argentina Armenia Aruba Australia Austria Azerbaijan Bahamas Bahrain Bangladesh Barbados Belarus Belgium Belize Benin Bermuda Bhutan Bolivia, Plurinational State of Bonaire, Sint Eustatius and Saba Bosnia and Herzegovina Botswana Bouvet Island Brazil British Indian Ocean Territory Brunei Darussalam Bulgaria Burkina Faso Burundi Cambodia Cameroon Canada Cape Verde Cayman Islands Central African Republic Chad Chile China Christmas Island Cocos (Keeling) Islands Colombia Comoros Congo Congo, the Democratic Republic of the Cook Islands Costa Rica Cote d’Ivoire Croatia Cuba Curaçao Cyprus Czech Republic Denmark Djibouti Dominica Dominican Republic Ecuador Egypt El Salvador Equatorial Guinea Eritrea Estonia Ethiopia Falkland Islands (Malvinas) Faroe Islands Fiji Finland France French Guiana French Polynesia French Southern Territories Gabon Gambia Georgia Germany Ghana Gibraltar Greece Greenland Grenada Guadeloupe Guatemala Guernsey Guinea Guinea-Bissau Guyana Haiti Heard Island and McDonald Islands Holy See (Vatican City State) Honduras Hungary Iceland India Indonesia Iran, Islamic Republic of Iraq Ireland Isle of Man Israel Italy Jamaica Japan Jersey Jordan Kazakhstan Kenya Kiribati Korea, Democratic People’s Republic of Korea, Republic of Kuwait Kyrgyzstan Lao People’s Democratic Republic Latvia Lebanon Lesotho Liberia Libyan Arab Jamahiriya Liechtenstein Lithuania Luxembourg Macao Macedonia, the former Yugoslav Republic of Madagascar Malawi Malaysia Maldives Mali Malta Martinique Mauritania Mauritius Mayotte Mexico Moldova, Republic of Monaco Mongolia Montenegro Montserrat Morocco Mozambique Myanmar Namibia Nauru Nepal Netherlands New Caledonia New Zealand Nicaragua Niger Nigeria Niue Norfolk Island Norway Oman Pakistan Palestine Panama Papua New Guinea Paraguay Peru Philippines Pitcairn Poland Portugal Qatar Reunion Romania Russian Federation Rwanda Saint Barthélemy Saint Helena, Ascension and Tristan da Cunha Saint Kitts and Nevis Saint Lucia Saint Martin (French part) Saint Pierre and Miquelon Saint Vincent and the Grenadines Samoa San Marino Sao Tome and Principe Saudi Arabia Senegal Serbia Seychelles Sierra Leone Singapore Sint Maarten (Dutch part) Slovakia Slovenia Solomon Islands Somalia South Africa South Georgia and the South Sandwich Islands South Sudan Spain Sri Lanka Sudan Suriname Svalbard and Jan Mayen Swaziland Sweden Switzerland Syrian Arab Republic Taiwan Tajikistan Tanzania, United Republic of Thailand Timor-Leste Togo Tokelau Tonga Trinidad and Tobago Tunisia Turkey Turkmenistan Turks and Caicos Islands Tuvalu Uganda Ukraine United Arab Emirates United Kingdom United States Uruguay Uzbekistan Vanuatu Venezuela, Bolivarian Republic of Vietnam Virgin Islands, British Wallis and Futuna Western Sahara Yemen Zambia Zimbabwe The 5th U.S. Circuit Court of Appeals will now weigh loaded questions over the meaning of “habitat” and the Fish and Wildlife Service (FWS) analysis underpinning the agency’s approach to protecting land for the warty frog.The unanimous decision is a narrow victory for private landowners, including timber giant Weyerhaeuser Co., which opposed FWS’s inclusion of their Louisiana property as critical habitat for the species, one of the 100 most endangered in the world.The ruling wipes out a 5th Circuit decision that upheld the habitat designation. While the land protections will remain in place for now, the landowners have an opportunity to make their case to the appeals court that their land doesn’t count as “habitat” for the frog and therefore cannot be included.”The nation’s hardworking property owners can rest easier tonight knowing government-sponsored land grabs just became a lot more difficult,” said attorney Mark Miller of the Pacific Legal Foundation in Sacramento, California, who represented some of the landowners, in a statement.Government officials declined to comment on the ruling, but environmentalists who intervened on FWS’s side stressed that the Supreme Court did not actually answer many of the key legal questions in the case.”Considering how narrow it was, if we were going to lose, this is a good way to lose,” says Collette Adkins a senior attorney Center for Biological Diversity who is based in Minneapolis, Minnesota. “It’s technically a loss, but it’s so narrow that it’s a punt.”At issue in the case is FWS’s 2012 decision to include more than 1500 acres of private land in Louisiana in its designation of critical habitat for the dusky gopher frog. FWS and consulting scientists identified the property as having the type of ephemeral ponds perfect for the animal’s recovery.The frog used to live across the South, but its numbers have collapsed through the years, and most individuals now cluster around a single pond in Mississippi.What is habitat?A major contention in the case is whether the Louisiana property counts as “habitat” under the Endangered Species Act (ESA).The law allows land protections in unoccupied areas of habitat, but the landowners argue that the 1500 acres don’t qualify because they’re simply not habitat: The frog could not survive there right now. The land would need modifications to serve as a suitable home.”This property is not just not optimal. It’s not habitat,” said Mayer Brown attorney Timothy Bishop, representing Weyerhaeuser, during oral arguments in October (Greenwire, 1 October).Chief Justice John Roberts wrote today that the ESA does not provide a “baseline definition” of habitat. The opinion directs the 5th Circuit to consider the issue.The ruling was unanimous. Justice Brett Kavanaugh, who wasn’t seated in time for 1 October arguments, did not participate. Many court watchers speculated that the eight justices would issue a narrow decision to avoid a 4-4 split on broader ideological issues.Adkins said environmentalists are hopeful the 5th Circuit, which upheld FWS’s designation before, will side with the government again.But, she noted, the appeals court is known for being conservative, and the Supreme Court’s ruling reopens issues that could result in unfavorable precedent for endangered species advocates.EconomicsToday’s ruling delivered a more decisive victory to landowners on a secondary issue: whether FWS’s economic analysis for a critical habitat designation is subject to judicial review. The Supreme Court ruled that it is.Weyerhaeuser and the other landowners had argued that they should be able to challenge the agency’s cost-benefit analysis supporting its refusal to exclude the 1500 Louisiana acres from its designation.Government lawyers countered that the ESA leaves that decision to the agency’s discretion and does not provide a standard for judicial review.But the Supreme Court found that such decisions can be reviewed by a court to determine whether they were arbitrary and capricious, or an abuse of discretion.Landowner Edward Poitevent hailed the ruling this morning as a major victory for private property advocates.”It’s astounding to find out the highest court in the land has not only your back, but the backs of all American landowners,” he said in a statement.The case now goes to the 5th Circuit for further proceedings.Reprinted from Greenwire with permission from E&E News. Copyright 2018. 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