This West Is OUR West

Supreme Court mulls taking frog-protection case

January 19, 2018

Scott Bomboy

On Friday morning, the Supreme Court will consider in private conference the case of unwanted government protection for prodigal endangered frogs from Mississippi that could return to Louisiana.

In Markle v. U.S. Fish and Wildlife Service, the dispute is over the protection of land that could potentially host the dusky gopher frog, which actually doesn’t live on the property in question in Louisiana but is an endangered species. (A related case, Weyerhaeuser v. U.S. Fish and Wildlife Service, is also at private conference.)

The Pacific Legal Foundation has filed a brief with the Supreme Court asking it to accept an appeal after an administrative decision dedicating protected space for a dusky gopher frog habitat in Louisiana was upheld. A divided Fifth Circuit Appeals Court refused to hear a full appeal after a smaller panel of judges ruled for the government.

The Fish and Wildlife Service wants a 1,500-acre tract of privately owned land protected as a potential breeding and living space for the frogs, which currently live in Mississippi and were once believed to live in the tract in question in the 1960s. The tract’s owners want to develop the land and harvest its timber. (Formerly known as the Mississippi Gopher Frog, the amphibians also once hopped around Alabama.)

In its court petition, Foundation attorney Reed Hopper said the lower court’s decision was an expansion of government powers. “The Fifth Circuit’s decision to authorize the designation of non-habitat as critical habitat is unprecedented in its potential to expand federal authority over local land and water use,” Hopper has argued. “It vests federal agencies with virtually limitless power to regulate any and all areas of the Nation based solely on the government’s bald assertion that the regulated areas are ‘essential to the conservation of a protected species.’”

A group of 17 states, led by Alabama, also supports the private land owners, who have the property interests in the case. The states believe a divided Fifth Circuit wrongfully interpreted the Endangered Species Act and upset “the delicate balance Congress struck in the ESA between ensuring the recovery of listed species and protecting the private property rights of citizens and the sovereign interests of the States.”

The Trump administration has filed a brief supporting the Fish and Wildlife Service, which made its Gopher Frog decision during the Obama administration. Solicitor General Noel Francisco says that the Service had the latitude to make the frog-protection rule under a concept called Chevron deference, which allows government agencies to make reasonable interpretations of ambiguous laws or statutes.

In concluding that “the designation of Unit 1 [the Louisiana property] as critical habitat was not arbitrary and capricious nor based upon an unreasonable interpretation of the ESA” under Chevron ... The court of appeals properly accounted for the full range of relevant considerations,” Francisco said.

The Supreme Court has already considered Markle v. U.S. Fish and Wildlife Service and Weyerhaeuser v. U.S. Fish and Wildlife twice in private conference.

Scott Bomboy is the editor in chief of the National Constitution Center.