Posted on by Californiacontrarian

Those Cute Little Guys

One of the first cases on the docket for the Supreme Court this session involves the dusky gopher frog, which is obviously neither the plaintiff nor the defendant, but nonetheless is a prime focus in this case.

This 3 inch long creature spends most of its life in underground burrows and tree stumps, but breeds in isolated ephemeral ponds. The private property in question in this case is  located in St Tammany’s Parish in Louisiana and has ephemeral ponds, which are low-lying areas that fill with water at certain times of the year — when the frog lays eggs — but then dry out. Because of that, the ponds can’t support fish, which would eat the eggs.

Basically, the U.S.Fish and Wildlife Service, designated more than 1,500 acres in Louisiana as a “critical habitat” for the dusky gopher frog’s future survival. The property in question is owned by a family which leases the property to Weyerhaeuser, the timber giant that harvests trees there, but also has development plans for the land. The wildlife service determined that the 1500 acre parcel was “restorable with reasonable effort” to support the dusky gopher frog . . . if it were to be transported there.

Now I wasn’t at the Supreme Court proceedings, but my source tells me that this is what went on . . . in general.

Initially, Justice Ginsburg questioned whether the company and the family that owns most of the land had yet suffered any loss that would make the case ripe for a Supreme Court decision. The Weyerhaeuser lawyer, Timothy Bishop responded that the government had estimated the land value could decline by $33 million if the government restrictions stand.

We pick it up just as it was Justice Elena Kagan’s turn to ask the questions.

Kagan: Are you familiar with the term “critical habitat? “                                              Bishop responded: Yes, your honor. And the law only allows the government to designate as critical habitat, lands where the species could now live.

Kagan: Yes, yes, I am aware of that. Are you implying that those cute little dusky gopher frogs do not live there now?                                                                             Bishop: Yes, I am your honor. In fact they haven’t lived there since 1965.

Kagan: Yes, yes, of course, I am aware of that, but those cute little guys do live close.            Bishop: Of course distance is always relative. As I am sure you are aware, the closest dusky gopher frog presently resides in Mississippi’s De Soto National Forest, about 50 miles from the property in question. I would also venture that you are aware that the U.S. Fish and Wildlife Service has already designated 11 sites, 4,900 acres, in 11 different sites in Mississippi as critical habitats for this animal.

Kagan: Yes, I am aware of all that, but fifty miles is a relatively short distance. Perhaps we should just move the cute little buggers over there tomorrow.                                                                                              Bishop: With all due respect your honor, just about everybody agrees that, although the land has the ponds, it does not have other physical characteristics the gopher frogs need. As I am sure you are aware, the current tree canopy and ground cover are not conducive to the frog’s survival.

At this point it appeared to some that Justice Kagan had a tear on the right side of her face, making its way out from under her sunglasses, down her cheek, and onto her desk, where she had four snapshots of the dusky gopher frogs. From the side it appeared to some that her eyes were red. Was that why she was wearing her sunglasses inside?

Hesitantly, Justice Kagan continued: What if the land could be made habitable with reasonable alterations, so that we could save those cute little guys? “To my mind, it is a counterintuitive result that the statute would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements in order to support the species.”

Justice Samuel Ailto Jr.: “This is not a question of whether the frogs will become extinct.” Alito continued, “The question is, who is going to have to pay, and who should pay for the preservation of this public good?”

Then Justice Roberts chimed in:  “If you permit the designation of something as critical habitat that cannot be occupied by the animal, because you think they can do something down the road that will cure the problem . . . you ought to be able to articulate what the limit is on what you require down the road.”

Deputy Solicitor General Edwin S. Kneedler, the government’s representative for the tiny dusky gopher frogs, appeared somewhat choked up when he replied that the improvements would have to be reasonable, but yet after he regained his composure, he was unable to come up with a time limit that would satisfy Roberts. Some in the room wondered why Mr. Kneedler was also wearing sunglasses.

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