Supreme Court With Vacancy Could Split 4-4 on Endangered Frog

(Bloomberg) -- The Supreme Court opened its new term Monday with a case over an endangered frog and a reminder about the impact Brett Kavanaugh could have if he wins confirmation to the court.

The justices appeared split, possibly 4-4, over the federal designation of privately owned land in Louisiana as critical habitat for the dusky gopher frog. The owners of the land, including the forest-products company Weyerhaeuser Co., say the designation is improper because the animal doesn’t live on the property and couldn’t do so without modifications to the land.

During the one-hour argument, Justice Elena Kagan said she read the Endangered Species Act as allowing the Fish and Wildlife Service to designate land as essential for a species, even if it can’t support the animal right away. She said the law’s definition of "habitat" left open the possibility that modifications would be needed.

"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," she said.

But Justice Samuel Alito suggested Kagan was twisting the the question before the court. He said the government could protect the frog by buying the land rather than designating it as critical habitat.

"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?"

Weyerhaeuser is harvesting timber on the land and says the owners are planning to develop the 1,500-acre property later. Although the designation as critical habitat doesn’t restrict the logging operations, Weyerhaeuser’s lawyer, Timothy Bishop, told the justices the decision had diminished the land’s value by tens of millions of dollars.

If the justices are divided 4-4, they could order the case re-argued once a ninth justice is seated. Senate Republicans are aiming to vote on President Donald Trump’s nomination of Kavanaugh after the FBI finishes a one-week investigation into sexual assault allegations against him.

The dusky gopher frog now lives only in neighboring Mississippi, and the Fish and Wildlife Service estimated in 2015 that only 160 existed in the wild.

The frog requires what has become a rare combination of environmental features, including an open tree canopy and temporary ponds where females can deposit their eggs without the risk that the eggs will be eaten by fish. Although dusky gopher frogs lived on the disputed land until 1965, they couldn’t do so now unless trees were removed.

The Fish and Wildlife Service designated the land when Barack Obama was president. The Trump administration is now defending the designation, saying the Endangered Species Act allows for the possibility that a habitat may require improvement.

The case is Weyerhaeuser v. Fish and Wildlife Service, 17-71.

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