The Supreme Court’s Louisiana frog ruling is based on common sense

On Tuesday, the nation’s highest court showed that simple logic in our legal system is not yet dead — or, to use the vernacular, that it hasn’t croaked.

Before Chief Justice John Roberts reached the Supreme Court, his most famous judicial opinion as a lower-court judge declared that a toad species which lives only in one state cannot be regulated as part of interstate commerce. How can it be interstate, he asked, when the question involves “a hapless toad that, for reasons of its own, lives its entire life in California”?

Despite Roberts’ pithy wisdom, he was on the losing side of that 2003 ruling. But yesterday, all eight voting justices (Brett Kavanaugh did not participate) signed on to a Roberts opinion that private land in Louisiana, on which an endangered frog species has not lived for half a century, should not be regulated as if it is “critical habitat” for the species. After all, how can something be habitat for a critter that doesn’t habitate there?

In both cases, regarding both amphibious species, Roberts’ position was not just legally sound but also pure, basic, and obvious common sense. We should be heartened to see that a unanimous high court still can apply common sense amidst a foggy bog of ideologically crusading legal sophistry.

Tuesday’s case, Weyerhaeuser v. U.S. Fish and Wildlife Service, involved the Interior Department’s decision to designate some private land in St. Tammany Parish, La., as “critical habitat” for endangered species known as the “dusky gopher frog.” Today, fewer than 100 of those frogs remain, all around a single pond in neighboring Mississippi. While the Louisiana land in question once featured those frogs, it was 1965 the last time one was seen there. And although the land still features some ponds of the sort favored by this species, its vegetation long ago ceased being conducive to their survival.

Yet because Interior still insisted on designating the St. Tammany land as critical habitat, landowner Edward Poitevent was prohibited from developing his own land, costing him $33.9 million. One can understand why the designation made Poitevent hopping mad.

An outside observer might have thought this case an easy one to judge in Poitevent’s favor. But the 5th Circuit Court of Appeals refused to offer him relief, saying that the applicable law on Interior’s designation of critical habitat made such designation not subject to judicial review.

Granted, sometimes what seems obvious by common-sense analysis is negated by the actual wording of a statute. There are indeed instances in which a particular law explicitly excludes an agency’s actions from being subject to review in the court system.

But as all eight justices agreed, the Supreme Court has “long applied a strong presumption favoring judicial review of administrative action.” Exceptions to that presumption are quite “narrow,” wrote Roberts. And with a convincing explanation, he determined that those exceptions were not in play here.

Once the court determined that Interior’s designation of habitat was indeed reviewable, it managed to apply common sense. The eight justices ruled, in effect, that no amount of bureaucratese could obscure this basic reality: “Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat.”

James Madison, the “Father of the Constitution,” was himself no lawyer, and he firmly believed the Constitution and laws were supposed to be understandable by all, not just by lawyers. “It will be of little avail to the people that the laws are made by men of their own choice,” he wrote, “if the laws be so … incoherent that they cannot be understood.”

The Supreme Court on Tuesday struck a blow for coherence. Thank goodness.






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