For the first case of its new term, the Supreme Court tackled a question that pits the federal government against private landowners: Can areas not currently occupied by an endangered species be designated as critical habitat?

If not, many species could be in danger of extinction, conservation groups contend, partly because of the spotlight such designations shine on species’ needs but also because activities in critical habitat that require federal approval must be evaluated for their potential harm to federally listed species.

But industry groups, including the American Farm Bureau Federation, are worried that allowing the Fish and Wildlife Service to continue designating unoccupied habitat could have a “chilling” effect on commercial activities.

The species at issue in the case, Weyerhaeuser Co. v. Fish and Wildlife Service, is the dusky gopher frog, a small amphibian that currently lives only in a few ponds in Mississippi. The fight at the Supreme Court is over a 1,544-acre piece of land in Louisiana that contains features – most significantly, ephemeral ponds – the FWS deemed essential for the conservation of the species and included in the frog's critical habitat designation.

Observers at the court said afterwards it looked like the court would be split. A 4-4 decision would affirm the Fifth Circuit Court of Appeals opinion, that FWS was legally justified in designating the land as critical habitat.

The court is operating with eight justices until a new justice is confirmed by the Senate. D.C. Circuit Court of Appeals Judge and Supreme Court nominee Brett Kavanaugh is now the subject of an FBI probe that is expected to be completed by the end of the week.

Most of the land is owned by the family of Louisiana lawyer Edward Poitevent, but Weyerhaeuser Company, which filed the petition with the Supreme Court, owns about 140 acres and leases the rest for logging.

At the court, lawyers for Weyerhaeuser and the United States faced questions from every justice except Clarence Thomas as they struggled at times to get their points across. Much of the argument focused on the government’s contention that the potential habitat would need only minor alterations to make it suitable for the frog.

Deputy Solicitor General Edwin Kneedler told the court that FWS determined “reasonable efforts” could turn the uplands on the property into attractive habitat for the frog, an argument picked up by Justice Elena Kagan.

Kagan called it “counterintuitive” that the Endangered Species Act “would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements in order to support the species.”

Kneedler characterized restoration efforts as “entirely in sync with the use of the land.” Uplands containing trees could be thinned, for example.

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But Tim Bishop of Mayer Brown LLP in Chicago, representing Weyerhaeuser, said it would take much more than that to turn the forested area into suitable habitat. “We would have to totally change the way that this land operates in order to accommodate the frog,” he said.

After the argument, Poitevent told Agri-Pulse it would cost “maybe 100 million or more dollars” to restore the land. “You would have to chop down every tree on 1,500 acres, replant them, maintain the ponds, burn the undercover every year so the frogs can hop once they get out of the ponds.”

Noah Greenwald, endangered species director for the Center for Biological Diversity, disagreed with Poitevent and Bishop. “To restore this area would be quite reasonable,” he said after the arguments. “It wouldn’t require tens of millions of dollars.”

The frog “is not going to survive there in the long term unless we identify additional places” for it to live, he said.

Gary Baise, a lawyer with OFW Law who has been involved in many high-profile ag cases over the years, said Poitevent told him “he feels good about the arguments and feels (Justice Stephen) Breyer is possibly a swing vote.”

Baise also said he didn’t think the Supreme Court would have taken the case unless it wanted to overturn the 5th Circuit’s decision. But when the court granted the petition, Justice Anthony Kennedy was still on the court.

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