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Supreme Court weighs government’s power over private land to protect a frog

October 1, 2018

The Supreme Court kicked off its new term Monday with the justices appearing split down ideological lines on whether the federal government can designate private land as a critical habitat for an endangered species even when the animal isn’t living on the land.

Down a member after the retirement of Justice Anthony M. Kennedy, the court’s 2018-2019 term is looking tame compared to the last one, which ended in June, and saw major cases on immigration, presidential powers and political gerrymandering.

This new term began with a case on the endangered dusky gopher frog, found exclusively in Mississippi, but for which the government designated roughly 1,500 acres of protected habitat in Louisiana in 2012.

The landowners sued, saying their land plummeted $34 million in developmental value. They’re refusing to take measures like planting certain pine trees or trimming the branches to maintain the land as a habitat.

“It’s an attractive area for development because it’s connected to where the jobs are,” Timothy S. Bishop, the attorney representing the landowners, told the high court.

They argue the government can’t designate private land as a “critical habitat” when the animal isn’t currently living in the area.

But the government says the Endangered Species Act grants the administration powers necessary to preserve the species, and this land is deemed important to that goal.

“The act turns on the status of the land, not the intention of the landowner,” said Edwin S. Kneedler, deputy solicitor general for the Justice Department.

According to the Fish and Wildlife Service, designating private land as a critical habitat doesn’t inhibit the actions of a private landowner other than regulatory oversight, such as ensuring no action is taken that would destruct or adversely change the land as a future habitat.

The 5th U.S. Circuit Court of Appeals agreed with the administration, saying the courts must defer to the Fish and Wildlife Service’s interpretation of the law.

Justice Ruth Bader Ginsburg suggested the landowners, who currently farm the land for timber, can still go about their business, so they may need to wait and bring their case when they do wish to alter the use of the land down the road.

“You are not commanded to do anything. You don’t have to do anything at all to to conserve the endangered species,” she said.

Justice Elena Kagan, meanwhile, argued the law’s interpretation of the word “habitat” also includes land where the species could be preserved.

“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 Kagan said.

In this case, the deputy solicitor general argued only reasonable efforts would need to be taken by the landowners, such as the thinning of trees.

But Chief Justice John G. Roberts Jr. and Justice Neil M. Gorsuch probed Mr. Kneedler about what constitutes “reasonable” efforts over a period of time.

And Justice Samuel A. Alito Jr. questioned who should bear the cost of the maintenance, suggesting this case may involve a corporation, but wondering what would happen if it were a family farm.

“Now 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. The question is, who is going to have to pay and who should pay for the preservation of this public good?”

He wondered what the formula would be for figuring out when the burden on a family farm becomes unreasonable.

“I don’t think there would be a hard and fast rule,” Mr. Kneedler responded.

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