A victory for property rights at the U.S. Supreme Court does not mean all is lost for dusky gopher frogs, a small tribe of amphibians whose cause was taken up through the Endangered Species Act.
For now, though, about 1,500 acres of timberland in St. Tammany Parish cannot be designated as critical habitat for the frog.
The 8-0 ruling written by Chief Justice John Roberts Jr. makes a lot of sense. The little frog hasn’t lived in Louisiana for a long time, but federal law — according to the U.S. Fish and Wildlife Service — allows the government to designate “critical habitat” because the Louisiana tract is where the frog will maybe, one day, breed again.
There is more than a bit of “God willing, the frog will breed” in this habitat case.
But Roberts’ ruling is narrowly tailored to the case, and merely orders the appeals court in New Orleans to examine what “habitat” means in the law. We like the common sense from Roberts. "Critical habitat," he wrote, can't be designated as such "unless it is also habitat for the species." The 5th Circuit, he said, did not take up that question when it considered the case.
The ruling is encouraging for the plaintiffs, including a big timber company that argued it would lose millions in value if the restrictions on logging the “critical habitat” were put into place. But the ruling does not essentially change the law, nor does it forbid the Fish and Wildlife Service from designating the land as critical habitat, at least yet.
"I'm ecstatic. This is a great decision for my family," said landowner Edward Poitevent, adding that he was surprised by the unanimous decision. Many observers had expected the court to divide along liberal-conservative lines.
Perhaps the court will split one day on this issue. A narrowly tailored decision by Roberts may postpone another ruling in the case after new arguments in the 5th Circuit, or another case somewhere else in the country. The ruling was from eight justices, since the ninth, Brett Kavanaugh, had not yet taken his seat before the case was argued.
We suspect that there is some sympathy for the poor frog, of which only about 100 exist in the wilds of Mississippi. Saving species is a good thing, but the powers of the U.S. government cannot run roughshod over private property rights.
Is the law too broad? The Endangered Species Act allows for unoccupied land to be designated as habitat, and the St. Tammany tract is "ideal breeding habitat" for the dusky gopher frog, commented Colette Atkins of the Center for Biological Diversity.
How far afield can the U.S. government go to find ideal breeding habitats for endangered species? That question is still waiting in the woods of the law.