Scrambled eggs and fried dusky gopher frog? Do they serve that at Waffle House in Mississippi?
Big Red Car here on a gray morning, but maybe I’m not giving the sun a fair chance.
Today, we speak of the Supreme Court of the United States. We think of the current SCOTUS as being a 5-vote conservative majority facing off with a 4-vote liberal minority. This is, of course, as a result of the fairly recent Justice Gorsuch and Justice Kavanaugh appointments.
Yesterday, they decided a case 8-0 which caught some folks by surprise. It was the famous Dusky Gopher Frog case in which the Fifth United States Circuit Court of Appeals (New Orleans) had upheld a designation by Federal regulators (talking to you, US Fish & Wildlife Service) that a 1,500 acre tract of land was “critical habitat” for the dusky gopher frog, an endangered species under the Endangered Species Act.
This is your dusky gopher frog exemplar. Good looking little bugger, no?
So, the controversy began in 2012 when the Fish & Wildlife Service folk designated a 1,500 acre tract of privately owned land in Saint Tammany Parish (Louisiana) as “critical habitat.”
The F & W folk would have you believe that the land could still be “developed” but the owner would have to create a conservation plan, provide for public comment, and obtain the approval of the F & W folks. Good luck.
The land, in the real world, is timber land which means that somebody would come in and cut down the trees and then replant it every twenty years or so.
As it turns out, there are only 100 dusky gopher frogs in the world and they all live in Mississippi. None of them live on the subject property.
So what, Big Red Car?
So, here are the problems with the case:
1. There are no dusky gopher frogs on the subject property in Saint Tammany Parish in Louisiana. Not a single one.
2. The F & W folks and their brethren (the endangered species lobby and activists) say, “Well, if a dusky gopher frog wanted to live in Louisiana, this is the kind of land they would want to live on.”
3. “Not so fast, y’all,” say the landowners. “This land has been logged in the past and the current forest is NOT the kind of forest that the dusky gopher frog likes or currently lives upon in Mississippi.”
4. Again, there are only 100 dusky gopher frogs in the United States and they all live in Mississippi. They are not mobile and are unlikely to fly to Louisiana even if they knew where the property was located.
5. When the F & W Service folks issued their preliminary map of critical habitat the subject property was not on it. When they issued their final map — BOOM — the subject property was added.
What are the issues, Big Red Car?
The issues are as follows:
1. Can the F & W Service give a landowner a head fake and just add their property to a list of critical habitat without warning?
2. Is a piece of property — timber land in this instance — critical habitat if there isn’t a critter within more than a hundred miles? Because somebody at the F & W Service thinks that a traveling dusky gopher frog might like it if they had a chance?
3. How hard does a landowner have to fight to protect their economic interest in their property? This has been a pitched battle for more than six years and it is really only being referred back to the Fifth Circuit for a “do over.” Poor landowner is still not out of the trap.
The merits seem clear, but it had to go to the Supreme Court of the United States to get a sort of final ruling.
So, the SCOTUS voted 8-0 (Justice Kavanaugh recused since he didn’t hear the actual argument as it was before his time on the bench) that this needed a second look.
Two things here — first, the landowner got some justice, but, the Supreme Court of the United States of America acted in unanimous agreement. Wow!
So, dear reader, there you have it. No scrambled eggs and fried dusky gopher frog for breakfast at Waffle House and, yes, the Supreme Court of the United States sometimes acts in concert.
Now, you have a damn fine day, y’all. Watch out for dusky gopher frogs.