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Supreme Court orders new look at case of endangered frog

November 27, 2018

FILE - This Sept. 27, 2011, file photo shows a gopher frog at the Audubon Zoo in New Orleans. The U.S. Supreme Court said Tuesday, Nov. 27, 2018 that a Louisiana-based federal appeals court must take another look at a federal agency’s designation of a tract of Louisiana timberland as “critical habitat” for gopher frogs, endangered frogs currently found only in Mississippi. (AP Photo/Gerald Herbert, File)

NEW ORLEANS (AP) — Federal judges must look again at an agency’s decision to declare a tract of Louisiana timberland “critical habitat” for an endangered Southeastern frog, following a ruling Tuesday by the nation’s highest court.

The U.S. Supreme Court’s 8-0 ruling concerns the endangered dusky gopher frog, currently found only in Mississippi.

At issue in the case is a 1,500-acre (607-hectare) tract of land in St. Tammany Parish, north of New Orleans. The U.S. Fish and Wildlife Service designated it as critical habitat for the small amphibians. That could limit the possibilities for development and use of the land. Opponents of the designation cast it as an unjust land grab by an overreaching bureaucracy.

Environmentalists had backed the ruling as a needed environmental protection. The wildlife service had won in a federal District Court and at the 5th U.S. Circuit Court of Appeals in New Orleans.

But the Supreme Court ruled that the 5th Circuit must look at the unanswered question of what constitutes “habitat,” and whether the tract qualifies as habitat for the 3 ½-inch-long frogs. The opinion said none have been spotted in the area for decades and the area would now require modification, such as controlled burns of forest areas, to be suitable for them.

Tuesday’s opinion written by Chief Justice John Roberts also said the 5th Circuit should have considered the question of whether the benefits involved in designating the land as critical habitat outweighed the costs. The landowners objected to the wildlife service’s analysis. The lower courts decided the service had broad discretion to make the designation and the decision wasn’t subject to review. But Tuesday’s order said the 5th Circuit should have considered the question of whether the cost-benefit analysis was flawed.

Mark Miller of the Pacific Legal Foundation was among attorneys for the landowners who hailed the order as a clear victory, ensuring the right to challenge bureaucratic decisions in court.

Collette Adkins, attorney with the Center for Biological Diversity, said the ruling was a disappointment but didn’t weaken current habitat protections. She said she is hoping the 5th Circuit interprets the meaning of habitat broadly, to include places where the dusky gopher frog could live and breed “with some reasonable modifications.”

Justice Brett Kavanaugh took no part in the case. He joined the court after arguments.

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Associated Press reporter Mark Sherman in Washington contributed to this story.

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