Vol. 18, No. 50 A Newspaper of General Circulation December 11, 2018
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Justices: Land where frog can’t live isn’t ‘critical habitat’
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 Nov. 27 ruling 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 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 1/2-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.  
The 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 the 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.  
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