Supreme Court Hears Members’ Dusky Frog Case

Filed in Environmental, Land Development, Legal by on October 3, 2018 0 Comments

This Dusky Gopher Frog is posing for the U.S. Fish and Wildlife Service’s files.

The U.S. Supreme Court opened a new term Oct. 1 by hearing oral argument in Weyerhaeuser v. United States Fish and Wildlife Service, which involves a clash between two NAHB members and the dusky gopher frog.  NAHB has been involved in the case from the start, most recently weighing in with an amicus brief on the merits of the case.

The case revolves around the Fish and Wildlife Service designation of 1,555 acres of Louisiana timberland as “unoccupied critical habitat” for the endangered frog, locking down an estimated $34 million in lost development opportunities.

The service concedes that no frogs live on the land in question – nor have any been seen or smelled anywhere in the state for more than 50 years.  In fact, the only way to make the property suitable for the frog is through intensive land management practices, an imposition the FWS admits it may not force on private land owners.

At Monday’s oral argument, some justices seemed concerned that if the government can designate this land as critical habitat, then it could designate any land, no matter the amount of land alteration needed to support the frog.

Chief Justice Roberts questioned whether the government believed it could designate critical habitat in Alaska under the theory that one could develop ephemeral ponds and plant long-leaf pines and seal it all under a greenhouse to protect the frog. Likewise, other justices were looking for the government to provide a limiting principle to explain why it could not designate all areas as critical habitat.

NAHB expects the court to issue a decision by the end of the year. For additional information, contact Vice President for Legal Advocacy Tom Ward.


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