Center for Biological Diversity

For Immediate Release, November 27, 2018


Collette Adkins, Center for Biological Diversity, (651) 955-3821,
Cynthia Sarthou, Gulf Restoration Network, (504) 525-1528 x 202,

Supreme Court Sends Endangered Gopher Frog Case Back to Lower Court

WASHINGTON— The U.S. Supreme Court today issued a narrow ruling on the case involving endangered dusky gopher frogs, sending it back to the 5th Circuit Court of Appeals to decide whether to maintain the frog’s habitat protections in Louisiana.

“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 defended the frog’s protections before the Supreme Court. “The dusky gopher frog’s habitat protections remain in place for now, and we’re hopeful the 5th Circuit will recognize the importance of protecting and restoring habitats for endangered wildlife.”

The Supreme Court in January granted a “petition for certiorari,” filed by the timber company Weyerhaeuser, to reconsider a June 2016 decision from a three-judge panel of the 5th Circuit Court of Appeals that upheld a 2012 rule establishing the frog’s protections.

That rule protects 6,477 acres of critical habitat in Mississippi and Louisiana, including 1,600 privately owned acres of unoccupied frog habitat in St. Tammany Parish, La.

Because Justice Brett Kavanaugh was not yet confirmed when the Supreme Court heard arguments in the case, only eight justices participated and issued today’s decision, written by Chief Justice John Roberts. The decision maintains the frog’s habitat protections and sends the case back to the 5th Circuit to decide the key questions raised in the case.

Specifically, the Supreme Court directs the 5th Circuit to interpret the term “habitat,” as used in the Endangered Species Act, and assess whether the St. Tammany lands qualify as habitat.

The court also remanded the question of “whether the Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude Unit 1 arbitrary, capricious, or an abuse of discretion.”

"While we’re frustrated that this case has been sent back to the court of appeals, we’re still hopeful and we’ll keep fighting for the frog," said Cynthia Sarthou, executive director of the Gulf Restoration Network. “I hope the owners of the St. Tammany lands will come to realize the value of recovering these little animals and their wetland home, and work with the Service to get the frogs back to the small part of those lands that’s needed to support them.”

The Center for Biological Diversity and Gulf Restoration Network defended the frog’s habitat protections by intervening and participating as parties in the litigation before the Supreme Court.

The dusky gopher frog (Rana sevosa) is a warty, dark-colored frog with ridges on the sides of its back. When picked up, these frogs cover their eyes with their forefeet, possibly to protect their faces until predators taste their bitter skin secretions and release them. Gopher frogs spend most of their lives underground in burrows created by gopher tortoises — hence their name.

Once prevalent in Louisiana, Mississippi and Alabama, dusky gopher frogs are nearly extinct. More than 98 percent of longleaf pine forests — upon which the frog and many other rare animals depend — have been destroyed. Fire suppression, drought, pesticides, urban sprawl, highway construction and the decline of gopher tortoises have made this frog so rare it now lives in only a few small Mississippi ponds, with only one pond showing consistent frog reproduction.

In response to a Center lawsuit, the Fish and Wildlife Service listed the gopher frog as a federally endangered species in 2001. The lawsuit and advocacy by the Center also prompted the 2012 critical habitat designation at issue in the Supreme Court case. Additionally, in response to legal advocacy by the Center and Gulf Restoration Network, the agency released a final recovery plan for the frogs in 2015.

Dusky gopher frog

Dusky gopher frog courtesy USFWS. This image is available for media use.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1 million members and online activists dedicated to the protection of endangered species and wild places.

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