The Supreme Court dealt a setback to the endangered dusky gopher frog on Tuesday, wiping away a lower court opinion that favored protections for the three-inch amphibian and directing the lower courts to take another look at how the Fish and Wildlife Service acted to protect land for the vanishing species.
Chief Justice John Roberts, writing for an 8-0 court, said that the lower court should consider whether the agency’s assessment of the “costs and benefits” of a critical habitat designation on private land was flawed.
In his opinion, Roberts called the frog a “three inch long” amphibian with a “large head, plump body, and short legs.”
“Less endearingly, it also secretes a bitter, milky substance to deter would-be diners,” Roberts added.
The ruling is a loss for those seeking to protect the frog, as well as the Trump administration, which supported the agency’s action. Only eight justices heard the case because it was argued before the confirmation of Justice Brett Kavanaugh.
CNN legal analyst and University of Texas Law School professor Steve Vladeck described Tuesday’s action as another example of Roberts and the court sidestepping a more decisive ruling when cases were heard with only eight justices.
“Today’s ruling avoids the larger questions raised by the case, returning those issues to the court of appeals in the first instance,” Vladeck said.
Lumber company Weyerhaeuser, which holds a long-term timber lease on the land in dispute, argued that the tract of land “concededly contains no dusky gopher frogs and cannot provide habitat for them absent a radical change in the land use because it lacks features necessary for their survival.”
The landowners say the that the Fish and Wildlife Service concluded that the designation could cost $34 million in lost development value of the tract.
But the government argued that if the frogs are “translocated to the site” in five ponds that are “in close proximity to each other” that adult frogs could potentially create a “metapopulation.”
Collette Adkins of the Center for Biological Diversity, who argued in favor of the habitat designation, described the species is a warty, dark-colored frog with ridges on the sides of its back. When it is picked up, it covers its eyes with its forefeet to protect its face until predators taste its bitter skin secretions.
The frog spends most of its life living underground in burrows created by gopher tortoises. The frogs migrate to isolated, ephemeral ponds to breed, and then return to their underground habitats.
“The frog experts have made clear that habitat in Louisiana needs to be protected if the frog is going to survive,” Adkins said, adding that the frog historically lived in Alabama, Louisiana and Mississippi but there are currently only about 100 frogs alive in Mississippi due primarily to habitat loss. The frog has not lived in the Louisiana land for decades but it contains breeding sites and closely clustered ephemeral ponds.
The 5th US Circuit Court of Appeals ruled against the landowners, holding that they had not established that the Fish and Wildlife Service interpreted the Endangered Species Act “unreasonably” when it found that the land in Louisiana “was essential for the conservation of the dusky gopher frog.”