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Justices add frog case to merits docket

This morning the Supreme Court issued additional orders from last week’s conference. On Friday, the justices announced that they would review Hawaii’s challenge to the most recent iteration of the president’s “travel ban.” Today the court granted review in an environmental-law case, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service.

The star of Weyerhaeuser’s case is the dusky gopher frog, an endangered species that can only survive in a habitat that meets several specific criteria – including, for breeding, small temporary ponds in a forest where the tree tops are relatively widely spaced. The legal dispute now before the court arose when the FWS designated over 1500 acres of privately owned forest in Louisiana as a “critical habitat” for the frog, which would stand in the way of plans to develop the land, at a cost of up to $34 million. The sticking point is that the dusky gopher frog doesn’t live on the designated land, which doesn’t meet all of the criteria for its survival, and hasn’t been seen there in over 50 years. The landowners’ challenges to the designation failed in the lower federal courts, but now the Supreme Court has agreed to decide two questions presented by the landowners: whether the Endangered Species Act allows an agency like FWS to designate private land as a critical habitat when it is neither a habitat nor critical; and whether courts can review the agency’s decision not to exclude an area from the designation of a critical habitat because of the economic effects of designation.

The justices also asked the federal government to weigh in on two petitions for review, in Sterba v. PNC Bank and Strang v. Ford Motor Co. In Sterba, the U.S. solicitor general will provide the government’s views on which choice-of-law rules (federal or state) bankruptcy courts should apply to decide which statute of limitations applies to a creditor’s claim. In Strang, the government will offer its views on whether the widow of a retired Ford employee who wanted to receive his pension as a lump-sum payment because he was dying can sue Ford under ERISA alleging a breach of fiduciary duty. There is no deadline for the solicitor general to file his briefs in these cases, but he is likely to do so this summer.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices add frog case to merits docket, SCOTUSblog (Jan. 22, 2018, 3:02 PM),