Court appears divided over protected land for frog in first case of term

A shorthanded Supreme Court started off its new term Monday seemingly split on what’s become a big dispute over a tiny endangered frog.

Fresh off summer recess, the justices spent their first hour back on the bench grappling with whether the federal government can legally designate a 1,500-acre tract of private land in Louisiana a “critical habitat” for the dusky gopher frog when the amphibian doesn’t live on the property and can’t live on it without altering the land.

{mosads}Chief Justice John Roberts and Justice Samuel Alito, members of the court’s conservative wing, questioned how far landowners should be expected to go to create a livable habitat for endangered or threatened species under the Endangered Species Act.

“What’s the limit?” Roberts asked.

Weyerhaeuser Company, which is challenging the U.S. Fish and Wildlife Service’s (FWS) 2012 designation along with the property’s other owners, argues the land now used to harvest timber is unsuitable for the frog.

The amphibian needs isolated, ephemeral ponds in an open canopy forest to breed, as well as open non-breeding land close to the ponds and open land covered with herbaceous plants connecting the two.

Timothy Bishop, the challenger’s attorney, argued the timberland would have to be totally remade to support a frog that hasn’t been seen on the property since 1965. The frog is currently known to only live in Mississippi.

“This is an intensive 1500-acre tree farm,” Bishop said. “The trees are planted 10 to 12 feet apart. There is no groundcover because the sunlight does not reach the forest floor, and we don’t want it to because that interferes with tending to the trees.”

But Deputy Solicitor General Edwin Kneedler said the land contains rare breeding ponds that need to be preserved to support the frog’s survival.

“Here the restoration efforts are entirely in sync with the use of the land,” he said. “I mean, there are uplands with trees. As I say, they could be thinned.”

But Roberts asked if the ponds existed on lands in Alaska if the government could designate the area a critical habitat if a greenhouse could be built.

“In other words, there has to be presumably some limit on what restoration you would say is required,” he said.

Kneedler said FWS has found that restoration of the land could be accomplished with reasonable efforts.

“What’s the definition of reasonable?” Alito interjected.

Justice Sonia Sotomayor seemed to side with government, suggesting unoccupied land doesn’t have to be the optimal place for the frog to be preserved.

“If the species could survive with just a little work, wouldn’t that be enough?” she asked.

The court was down to just eight justices Monday. Sexual misconduct allegations have delayed and threatened the successful confirmation of Brett Kavanaugh, President Trump’s nominee to replace Justice Anthony Kennedy, who retired at the end of July.

There was no mention of the scandal during Monday’s arguments among the justices, who were in a new seating order following Kennedy’s retirement.

Both Roberts and Justice Stephen Breyer made references to draining the swamp — but they were talking about an actual swamp in hypotheticals of what reasonable changes would be.

Breyer said asking a property owner to drain six inches from a swamp is more reasonable than asking a property owner to build special greenhouses.

But Roberts said the government ought to be able to articulate what the limit is on what is required down the road.

The court will be forced to settle the issue with only eight justices even if a ninth member is confirmed in the near future. The court’s press office said incoming justices typically don’t decide cases that are heard prior to them joining the court.

A 4-4 tie would leave the 5th Circuit Court of Appeals decision affirming the critical habitat designation in place.

Sotomayor, however, suggested sending the case back down to the lower court to have it define what constitutes a habitable environment for the frog.

“Would a remand be appropriate?” she asked.

Remanding the case back down to the lower court might be a way for the justices to avoid issuing a deadlocked decision where the justices are split along ideological lines.

The court previously struggled to reach consensus with only eight justices after the death of Justice Antonin Scalia. 

—Updated at 1:52 p.m.