Supreme Court to Take Up Case of Dusky Gopher Frog

By FeaturesDow Jones Newswires

The Supreme Court on Monday agreed to take up a case about an isolated Mississippi frog that tests the scope of habitat protections under the Endangered Species Act.

The case pits landowners and property-rights advocates against environmentalists and the federal government. It centers on a 2012 action by the U.S. Fish and Wildlife Service to designate critical habitat for the dusky gopher frog.

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The frog has been listed as an endangered species since 2001, when the known adult population was about 100, all from a single pond in Mississippi.

The Fish and Wildlife Service delayed specifying the protected habitat for several years, but when it did, it concluded that designating land in Mississippi alone wasn't sufficient for conserving the species.

The service also chose to include in its designation a 1,500-acre tract of private land in Louisiana 50 miles away that it said contained a unique collection of ponds that could serve as a breeding ground for the frogs if a population were transported there. The frogs were known to live in the area as late as 1965.

Weyerhaeuser Co., which brought the case to the Supreme Court, owns part of the land at issue and leases the rest to grow and harvest timber. The company and other landowners have been exploring using the area for residential and commercial development.

The government's critical habitat designation didn't automatically shut down the owners' development plans for the land, but it could, which would mean $34 million in lost development value, according to a Fish and Wildlife Service estimate.

The federal government can't force the landowners to allow the reintroduction of the frogs there. But if the property falls under federal clean-water jurisdiction, which is uncertain for now, the owners couldn't develop it without the government's permission.

Weyerhaeuser argues the Endangered Species Act didn't authorize the designation of its land as critical habitat because the frog couldn't naturally live there right now, and because the property isn't essential for the conservation of the species.

"The frog does not live there, cannot live there, and will not live there in the future," the company wrote in its high court appeal, calling the government's action a costly expansion of federal power over private land.

Business groups, property-rights advocates and a coalition of 18 states filed briefs asking the Supreme Court to hear Weyerhaeuser's appeal.

The Trump administration and environmentalists urged the high court not to hear the case, arguing that scientific evidence supported the Fish and Wildlife Service.

The Justice Department, defending the service's actions, said the text of the Endangered Species Act allows for land to be designated as critical habitat even if the area lies outside the geography the species occupied when it was listed for protection.

"Many species are endangered precisely because their ideal habitat has been severely diminished or eliminated altogether," the department said in a court brief.

A divided panel of the Fifth U.S. Circuit Court of Appeals ruled for the government in 2016.

The case will likely be argued in the Supreme Court's next term, which begins in October.

Write to Brent Kendall at brent.kendall@wsj.com

(END) Dow Jones Newswires

January 22, 2018 15:42 ET (20:42 GMT)

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