The Supreme Court hears a case pitting frogs against loggers

By S.M. | NEW YORK

ON OCTOBER 1st, the first day of its upcoming term, the Supreme Court will consider what the future holds for the dusky gopher frog, an endangered amphibian. The judgement in Weyerhaeuser Co. v United States Fish and Wildlife Service will be important not only for the three-inch-long, warty, speckled frog but for the fate of a long-standing principle of judicial deference to federal agencies.

It is not easy being a dusky gopher frog. The creatures spend most of their time hopping around tree stumps or burrowing in holes with a canopy of longleaf pine trees overhead. They breed only in so-called ephemeral ponds—isolated, fishless bodies of water that dry out completely in the summer but give the swimming tadpoles just enough time to develop into amphibious adults. Under less ideal conditions, the gopher frogs have a hard time reproducing. Drought and decreased rainfall in recent decades have altered the fragile balance. As of 2015, only 135 were thought to live in America, all of them around a single pond in Mississippi. With such a limited universe, disease can wreak havoc: in 2003 an unknown bug killed half the tadpoles during the breeding season. The frog, whose call sounds like a snore, has been listed as an endangered species by the US Fish and Wildlife Service since 2001. In 2012, an international conservation organisation named it one of the 100 most endangered species in the world.

Why is the Supreme Court getting involved in the frog’s affairs? The US Fish and Wildlife Service’s plan to save the dusky gopher steps on the toes of Weyerhaeuser and Markle Interests, two timber companies. The loggers own some 1,544 acres of land in Louisiana that the federal agency says are essential to the frog’s continued existence. The tracts include five of the rare ephemeral ponds and contiguous upland habitat, enough to support the frog’s “metapopulation” assuming “reasonable effort” is made to adapt the forested bits, and they are far enough away from the Mississippi home base to shield the species from devastation stemming from climate fluctuations. Under the Endangered Species Act, a law passed in 1973, the government has the authority to preserve public or private land that serves as a “critical habitat” for at-risk species.

The land-owners balk at this designation, saying it could cost their companies as much as $34m over 20 years of lost development. But the “heavy and lopsided economic impact on private parties”, they argue, comes with little or no payoff for the frogs. Though one lone dusky gopher frog was spotted on the Louisiana land back in 1965, none currently live there, and only significant alteration to the forests surrounding the ephemeral ponds would turn the area into a plausible habitat for them. When a federal district court sided with the government against the companies in 2014, saying the fish and wildlife agency’s interpretation of the law was owed deference, the judge nevertheless noted that the 1,544-acre carve-out was “‘odd’, ‘troubling’, ‘harsh’ and ‘remarkably intrusive [with] all the hallmarks of governmental insensitivity to private property’.” A three-judge panel of the Fifth Circuit Court of Appeals affirmed the lower-court decision by a 2-1 vote. When the full Fifth Circuit narrowly declined to rehear the case en banc, Judge Edith Jones used Venn diagrams in her dissent. If a piece of land is not currently habitable by an animal, she wrote, there is no sense in which that same land can qualify as its “critical habitat”. Preventing the companies from using their privately owned land for economic development is, she wrote, a “wholly unprecedented regulatory action”. For the Cato Institute, a libertarian think-tank, the agency’s actions are “unmoored from all bounds of reason”.

When the Supreme Court takes up the case of capitalists versus croakers, two issues are likely to take centre stage. One is the interpretive point made by Judge Owen: does the concept of “critical habitat” in the Endangered Species Act apply to land that is only potentially critical to a species’ conservation? The other is how to apply the so-called Chevron doctrine, which tells judges to let agencies go with their interpretations of the law as long as they are reasonable. The justices have seemed increasingly sceptical of Chevron in recent years, with several noting outright opposition to the idea as “abdication of the judicial duty”. In the term that ended in June, legal scholar Jonathan Adler writes, the doctrine was “under siege”. In all five cases in which agencies (from the National Labour Relations Board to the Securities and Exchange Commission) asked the court to defer to their view of a statute, a majority of the justices “rejected the agency’s plea”. That may not bode well for the Fish and Wildlife Service’s plan to save the dusky gopher frog.