Constitution Daily

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Frogs, salmon subjects of potential Supreme Court cases

August 23, 2017 by Scott Bomboy


Among the more interesting petitions in front of the Supreme Court this summer are two potential cases involving wildlife and property: a dusky gopher frog habitat in Louisiana and salmon-free culverts in Washington state.

In July, the Pacific Legal Foundation filed a brief with the Court asking it to accept an appeal after an administrative decision dedicating protected space for the frogs was upheld – even though the endangered dusky gopher frogs weren’t on the property in question.

And last week, the Washington state attorney general filed a Supreme Court petition asking review of a federal appeals court decision. The Ninth Circuit said the state had to redo its culvert system under its roads to allow for the safe migration of salmon, under terms of 19th century Indian treaties.

In the Louisiana case, Markle v. U.S. Fish and Wildlife Service, a deeply divided Fifth Circuit Appeals Court refused to hear a full appeal after a smaller panel of judges ruled for the government. The Fish and Wildlife Service wanted a 1,500-acre tract of privately owned land protected as a potential breeding and living space for the frogs, who currently live in Mississippi and were once believed to live in the tract in question in the 1960s. Its owners want to develop the land.

Six dissenting Fifth Circuit judges had strong words after eight other judges refused to consider Markle’s appeal before the full bench back in February.

“The protagonist in this Endangered Species Act (ESA) case—the dusky gopher frog—is rumored to ‘play dead,’ ‘cover its eyes,’ ‘peak [sic] at you[,] and then pretend to be dead again,’” the dissenting judges said. “The panel majority regrettably followed the same strategy in judicial review.”

The dissenters argued that the majority of judges were wrong in deciding that administrative deference was allowed to the Fish and Wildlife Service in its decision to classify the land as frog friendly.

And in its court petition, Pacific Legal Foundation lead attorney Reed Hopper said the lower court’s decision was an expansion of government powers.  “The Fifth Circuit’s decision to authorize the designation of non-habitat as critical habitat is unprecedented in its potential to expand federal authority over local land and water use,” Hopper and his team argued. “It vests federal agencies with virtually limitless power to regulate any and all areas of the Nation based solely on the government’s bald assertion that the regulated areas are ‘essential to the conservation of a protected species.’”

In the salmon case, Washington state attorney general Bob Ferguson is asking the Supreme Court to reconsider a Ninth Circuit decision that requires his state to replace culverts that he said could cost “billions of dollars.”

The petition in State of Washington v. United States of America, Ferguson argues that the salmon-passage requirements exceeded the intent of a series of treaties from the 1850s made with northwest Indian tribes.

The case has been in the legal system since September 2001, when the federal government and several tribes sued Washington state. They claimed the existing culvert system kept the tribes from catching enough fish to make “a moderate living.”

In addition to the fish-quota dispute, Ferguson said the Supreme Court should take the case because it also expands regulatory power. “’[P]laintiffs could use the panel’s decision to demand the removal of dams and attack a host of other practices,’ and these concerns ‘extend[] far beyond the State of Washington,’ because the same treaty language is found in treaties with tribes in Idaho, Montana, and Oregon,” Ferguson said.

The Supreme Court could consider both cases in private conference early this fall.

Scott Bomboy is the editor in chief of the National Constitution Center.


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