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In this 2011 photo, a gopher frog is seen at the Audubon Zoo in New Orleans. (AP file photo)
In this 2011 photo, a gopher frog is seen at the Audubon Zoo in New Orleans. (AP file photo)

High court orders new review in frog habitat case

The U.S. Supreme Court told a lower court to take another look at the federal designation of privately owned land in Louisiana as critical habitat for the endangered dusky gopher frog.

Ruling unanimously in a case involving the forest-products company Weyerhaeuser Co., the justices called for a closer look at the meaning of the word “habitat” in the U.S. Endangered Species Act.

Weyerhaeuser, which owns part of the land, said the designation was improper because the animal doesn’t live on the property and couldn’t do so without modifications to the land. Weyerhaeuser is harvesting timber on the land and says the owners are planning to develop the 1,500-acre property later.

During arguments in October, the justices had seemed divided on whether the law’s definition of “habitat” left open the possibility that modifications would be needed.

Writing for the Supreme Court Tuesday, Chief Justice John Roberts said a federal appeals court didn’t squarely confront that issue when it rejected a challenge to the Fish and Wildlife Service designation. Roberts also told the appeals court to consider whether the agency adequately weighed the costs and benefits of designating the land.

The dusky gopher frog now lives only in neighboring Mississippi. No more than 200 adults are believed to exist in the wild.

Roberts wrote that the frog “is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes.” He added: “Less endearingly, it also secretes a bitter, milky substance to deter would-be diners.”

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.

New Justice Brett Kavanaugh didn’t take part in the case, which was argued before he was confirmed by the Senate.

The high court’s ruling is likely to have limited practical impact. The Trump administration is proposing changes in the Fish and Wildlife Service regulations to govern critical-habitat designations going forward.

The Fish and Wildlife Service designated the land when Barack Obama was president. The Trump administration has been defending the designation.

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

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