The dusky gopher frog, a tiny critter about three inches long, is in danger of extinction. Credit: Wikipedia/John Tupy/Western Carolina Univ.

On a seasonally ephemeral pond, in southeastern Mississippi, the last 100 dusky gopher frogs in the wild huddle together, unaware that their fate may hinge on oral arguments that will be heard Monday in the United States Supreme Court. The case, Weyerhaeuser v. U.S. Fish and Wildlife Service, is the first one on the calendar in the court’s new term.

It’s a showdown that pits the survival of an endangered species against the surging power of the Federalist Society, a nationwide association of conservative lawyers who value the rights of landowners over preservation of the flora and fauna that occupy the land. If the society’s name rings a bell, it may be because they are also in the news elsewhere in the nation’s capital this week: they are the group to whom President Trump has outsourced the power to select his judicial nominees, including embattled Supreme Court nominee Judge Brett Kavanaugh.

The dusky gopher frog historically occupied several regions in Alabama, Louisiana, and Mississippi. But by 2001, when the Fish and Wildlife Service got around to listing it as an endangered species, there was only one pond in Mississippi where the frog could be found. Although the Endangered Species Act of 1973 requires the Service to designate a “critical habitat” for an endangered species, Fish and Wildlife didn’t do so in 2001, citing budgetary limitations. Finally, in response to a lawsuit in 2010, the Service proposed sites in four counties in southeastern Mississippi, including several areas to which the frog would have to be relocated.

In addition to the geographical area occupied by a species at the time it is listed as endangered, Congress has said a critical habitat can include sites outside that area, if they are essential for the conservation of the species. Designation of land as a critical habitat doesn’t require the owner to maintain it as a sanctuary. Nor does it allow federal officials to come onto the land, or to make any changes to the property to render it more suitable to sustain the endangered species.

What it does do, at least theoretically, is protect the habitat from harm, if federal agencies plan to issue permits to develop the land in a way that would adversely modify it as a habitat. In that event, developers—in this case Weyerhaeuser, the giant lumber companyare required to consult with Fish and Wildlife to find alternatives that avoid the harm.

The six scientists with expertise on the dusky gopher frog hired by the Service to review the harm-mitigation proposal unanimously agreed that the designated sites could not ensure conservation. The low number of remaining frogs and their restricted range put them at risk from local events such as drought or disease. The scientists recommended seeking additional sites within the historic range of the frog, even if outside Mississippi. The Service agreed.

One of the principal tenets of the Federalist Society creed is the sanctity of private property. Members oppose most government regulations that would in any way impinge on owners, no matter what their plans for the property.

Fish and Wildlife identified an area in St. Tammany Parish, where the last known population of dusky gopher frogs outside Mississippi had lived as recently as 1965. Comprising 1,544 acres, the site contained seasonal ponds that could support breeding, and other environmental features that the Service found were not known to be present anywhere else within the species’ historic range. In 2012, Fish and Wildlife designated the St. Tammany Parish site as a “critical habitat,” and it began to look like the dusky gopher frog had a chance to survive.

A landowner is free, of course, to cooperate with the Service and develop areas of its property to maximize conservation. The landowners in St. Tammany Parish, however, chose to fight, and at this point members of the Federalist Society entered the fray.

The Federalist Society was started by right-wing law students in 1982. It has grown into a powerful organization of over 60,000 members, with an annual budget of nearly $30 million. Under Republican presidents, Federalist Society members increasingly control key legal positions in the White House and the Justice Department, as well as a number of other cabinet positions and slots in the federal legal bureaucracy.

Don McGahn, President Trump’s departing White House Counsel, and Jeff Sessions, the Attorney General, are both members. The Federalist Society is probably best known these days as the group that President Trump has allowed to select his nominees for federal judgeships. The key player in that extraordinary delegation of presidential power to an unelected institution is Leonard Leo, the Federalist Society’s executive vice-president.

After first bypassing Appeals Court Judge Brett Kavanaugh, the Federalist Society eventually swung around and backed him as Trump’s nominee to the Supreme Court. Trump has also put Louisiana lawyers who are members of the Federalist Society on the federal bench: Judges Kurt Engelhardt and Stuart Kyle Duncan on the Fifth Circuit Court of Appeals, and Judges Robert Summerhays and Barry Ashe on the District Court. The Federalist Society is active in Louisiana, with chapters in Baton Rouge and New Orleans, and four chapters at area law schools. It would be wise to pay attention to what they are up to.

The Federalist Society does far more than participate in the selection of judges. Through several avenues, it attempts to push law and public policy in an ultra-conservative direction. Although the Society itself does not litigate or take formal positions on legal or political issues, its members advance its ideological goals as individuals or as lawyers for so-called public-interest law groups toeing the conservative line. One of their most important activities is scouring the country for cases that they can use to try to bend the law their way.  This brought them to St. Tammany Parish.

One of the principal tenets of the Federalist Society creed is the sanctity of private property. Members oppose most government regulations that would in any way impinge on owners, no matter what their plans for the property. Indeed, the Society’s leaders have argued that any regulation of private property is a “taking” by the government, akin to an exercise of eminent domain. Thus they claim that property owners subject to regulation should be compensated — a financially unworkable requirement that would bankrupt government and make regulation impossible.

There is much more at stake in this litigation than Weyerhaeuser’s bottom line or the fate of a hundred frogs.

Although Federalist Society lawyers pay lip service to the validity of some government objectives, such as preserving endangered species, when push comes to shove they support giving property owners a free hand. While on the D.C. Court of Appeals, for example, Judge Kavanaugh heard 18 suits related to species preservation and voted against species protection 17 times, according to Assistant Dean William Snape at American Law School.

The Pacific Legal Foundation (PLF) is a litigation group largely staffed by Federalist Society members. It boasts a successful track record litigating against government regulation, including important matters in the Supreme Court. In 2013, it filed suit against the Fish and Wildlife Service, representing the owners and lessors of land within the St. Tammany Parish  habitat critical to the dusky gopher frog.

The principal plaintiff then and now was Weyerhaeuser, one of the world’s largest private owners of timberlands. The lawyer filing the suit was PLF attorney M. Reed Hopper, a Federalist Society “contributor.” (The Federalist Society does not ordinarily identify its members, but does list “contributors” to their events on its website.)

Weyerhaeuser lost in the District Court in Louisiana and lost again in the Fifth Circuit Court of Appeals, but succeeded in convincing the U.S. Supreme Court to hear the case. Numerous amicus briefs arguing Weyerhaeuser’s position have been written by Federalist Society members. They are countered by amicus briefs by environmental groups supporting the Fish and Wildlife Service.

Weyerhaeuser argues that it could lose as much as $34 million in future income if it is prohibited from doing what it wants with the 1,544 acres in Louisiana. The fate of a frog species may hinge on that dip in projected corporate profits, but $34 million is a drop in the bucket for Weyerhaeuser, which declared 2017 net earnings of $582 million on sales of $7.2 billion. The company controls over 12 million acres of timberland in the United States and another 14 million acres under long-term lease in Canada.

There is much more at stake in this litigation than Weyerhaeuser’s bottom line or the fate of a hundred frogs. Federalist Society lawyers seem intent on upending the whole process of Fish and Wildlife Service preservation efforts. In the Weyerhaeuser case they question whether designation of a critical habitat in Louisiana was an arbitrary decision, whether the criteria used by Fish and Wildlife to define a critical habitat were appropriate, and whether that site was essential for conservation of the frog. In their attempt to gut or weaken species-preservation mechanisms, they complain that the Service did not consider all economic impacts of the designation and failed to give appropriate weight to the economic impact on Weyerhaeuser.

Environmental groups argue that a decision in the corporation’s favor on such points would seriously undermine the Endangered Species Act and cripple the ability of the Fish and Wildlife Service to enforce it. These are issues that could affect a myriad of future cases. By narrowing the discretion of administrative agencies to enforce laws such as the Endangered Species Act, a decision in favor of Weyerhaeuser would transfer greater power to the courts, which Trump is rapidly staffing with Federalist Society members who oppose regulation. The potential losers are labor, consumers, women, racial minorities, the environment, and anyone who relies on the collective power of the government to control the excesses of rich and powerful private interests.

Michael Avery

Michael Avery is Professor Emeritus at Suffolk Law School, a former president of the National Lawyers Guild, and co-author of “The Federalist Society: How Conservatives Took the Law Back from Liberals.”

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