Eight justices return for new term

First on court docket: Fate of endangered dusky gopher frog

WASHINGTON — With the nation riveted by the Supreme Court nomination of Judge Brett Kavanaugh, the court itself returned to the bench Monday to start a new term after the justices’ summer break.

There was no empty chair to mark the absence of a ninth justice, and no mention of the confirmation fight. Instead, Chief Justice John Roberts started the session with a nod toward continuity, noting that it was the 25th anniversary of Justice Ruth Bader Ginsburg’s investiture. “We all look forward to sharing many more years with you in our common calling,” the chief justice said.

Ginsburg, who is 85, smiled and nodded.

Soon afterward, the eight justices turned their attention to the fate of the dusky gopher frog. They discussed draining the swamp, but not as a figure of speech.

The species is in danger of extinction, and the only known remaining frogs live the De Soto National Forest in Mississippi. In 2012, the federal government came up with a backup plan, designating private land in Louisiana as “critical habitat” for the frogs’ survival. None of the frogs live there now, and the designation could limit the ability of the owners to develop the land, by one account potentially costing them about $33 million.

Timothy Bishop, a lawyer for the landowners, said the designation made no sense, as the frogs are not currently present there and the land is not a suitable habitat for them.

“This property is not just not optimal,” he said. “It is not habitable.”

Edwin Kneedler, a lawyer for the federal government, responded that the land was the best choice for an effort to protect the frogs. It has a crucial feature the animals need, “ephemeral ponds” free of predators, he said. Other aspects of the land could be adapted with little effort, he said.

The Endangered Species Act requires the Fish and Wildlife Service to identify species in peril and to designate their “critical habitat,” meaning places they live now or places “essential for their conservation.” The service designated the land in Louisiana as the second sort of place.

It found that the land included the ponds crucial to the frogs’ survival. But it acknowledged that the frogs needed more, including an open forest canopy, while the Louisiana land had a closed canopy. The service said it would not take an unreasonable effort to thin the canopy.

The owners of land sued, and they lost in the lower courts. A divided three-judge panel of the 5th U.S. Circuit Court of Appeals, in New Orleans, said the government’s designation was entitled to judicial deference.

Bishop said the area would have to be transformed if the frogs were to survive there. “This is not a property on which there will be any ground cover to supply moisture or food or cover for these frogs,” he said. “We would have to totally change the way that this land operates in order to accommodate the frog.”

Kneedler disagreed. “If the frog is to be conserved and the risk of its extinction reduced,” he said, “the area involved here is essential to accomplish those explicit statutory purposes.”

The justices seemed largely divided along ideological lines in the case, Weyerhaeuser Co. v. United States Fish and Wildlife Service. The more liberal ones seemed inclined to defer to the government’s decision, and the more conservative ones appeared wary of its impact on private property.

Justice Elena Kagan said it would be “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.”

That was a false choice, Justice Samuel Alito responded. “This case is going to be spun — we’ve already heard questions along this line — as a choice between whether the dusky gopher frog is going to become extinct or not,” he said. “That’s not the choice at all.”

He said the government had other options, like buying the land needed to save the frogs. Justice Neil Gorsuch agreed. “There’s nothing preventing the government from purchasing land or taking other actions to protect an endangered species,” he said.