WY Weyerhaeuser Company

By Jess Bravin 

WASHINGTON -- The Supreme Court gave Weyerhaeuser Co. another chance Tuesday to possibly develop a Louisiana timber farm, which could doom an endangered species of frog, telling a lower court to review the government's decision to designate the land as critical habitat.

The unanimous opinion, written by Chief Justice John Roberts, held the hallmarks of a careful compromise on a case heard by an eight-member court before the confirmation of Justice Brett Kavanaugh.

At arguments Oct. 1, the court appeared split between conservatives concerned with the income loss Weyerhaeuser could suffer if construction were limited and liberals who reasoned the Endangered Species Act is broad legislation intended to mitigate the damage human encroachment inflicts on the environment.

Had the court split evenly, the dusky gopher frog's lower-court victory would have been upheld. Justice Kavanaugh's record suggests that should he hear such an issue, the amphibian would face an uphill climb.

Tuesday's decision, based on procedural grounds, delays the ultimate fate of the rural property in St. Tammany Parish, a New Orleans suburb on the northeast shore of Lake Pontchartrain. Demand for real estate there has grown as hurricanes and rising sea levels drive residents from points south.

"While we're disappointed, the ruling doesn't weaken the mandate to protect habitat for endangered wildlife," said Collette Adkins, a Center for Biological Diversity attorney who argued for the protections before the Supreme Court. "The dusky gopher frog's habitat protections remain in place for now, and we're hopeful the Fifth Circuit will recognize the importance of protecting and restoring habitats for endangered wildlife to live."

A company spokesman couldn't immediately be reached.

Chief Justice Roberts wasn't wholly unsympathetic to the dusky gopher frog, which once ranged across Alabama, Louisiana and Mississippi but saw its numbers reduced by 2001 to a population of 100 in a single Mississippi pond as 98% of its forest habitat was sacrificed to human development.

The frog "is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes," Chief Justice Roberts observed. "Less endearingly, it also secretes a bitter, milky substance to deter would-be diners."

More to the point, the frog's life cycle requires ephemeral ponds that are dry part of the year and an open-canopy forest. The species had lived on the Weyerhaeuser property at least until 1965, and the land retained many characteristics that would allow rebuilding a population there, the U.S. Fish and Wildlife Service found.

The critical-habitat designation, which doesn't directly affect the landowner, limits federal agencies such as the Army Corps of Engineers from issuing permits for development projects that could harm the species.

The Fifth U.S. Circuit Court of Appeals, in New Orleans, found that the critical-habitat designation couldn't be challenged in court. The Supreme Court held otherwise Tuesday.

First, the justices said a lower court must examine whether the property was habitat at all, since the frog doesn't now live there. If it isn't even habitat, it hardly can qualify as critical habitat, the court said.

Second, the lower court must consider the decision that the potential economic costs to Weyerhaeuser weren't "disproportionate" to the conservation benefits. The wildlife service found that the property's owners could lose $20 million to $34 million if development of part or all of the site were blocked.

Weyerhaeuser says those figures are low, and the Supreme Court decided the company should have a chance to make its case in court.

Write to Jess Bravin at jess.bravin@wsj.com

(END) Dow Jones Newswires

November 27, 2018 13:40 ET (18:40 GMT)

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