The dusky gopher frog leapt into the legal limelight Monday when the U.S. Supreme Court agreed to consider whether private land can be designated as a critical habitat for the frog—deemed an endangered species—when it doesn't and can't live on the land.

The court issued the grant of certiorari along with other orders including three opinions, even as much of the rest of the federal government was in shutdown mode.

The court in Weyerhaeuser v. United States Fish and Wildlife Service is being asked to decide whether the service acted improperly by tagging a 1,500-acre tract of private land in Louisiana as an area critical to the survival of the frog—when none of the frogs live there and the land allegedly lacks features that are necessary to the species' survival.

Mayer Brown partner Timothy Bishop, who represents Weyerhaeuser Co., wrote in his petition, “The problem with [the service's] designation of unit 1 as critical habitat for the dusky gopher frog is that the Endangered Species Act does not authorize it.” He claims that the law only calls for protecting habitats where the endangered animal “could naturally live or grow.”

The case drew strong amicus curiae interest from business advocates, conservative public interest groups and 18 states. In addition to targeting “overreach” by the U.S. Fish and Wildlife Service, the briefs criticize the ruling of the U.S. Court of Appeals for the Fifth Circuit for giving too much deference to the service's interpretation of the act. As such, the case could be a vehicle for further scrutiny of so-called “Chevron deference”—an issue that was prominent in the confirmation hearing last year for U.S. Supreme Court Justice Neil Gorsuch.

The U.S. Chamber of Commerce brief, authored by Aaron Streett of Baker Botts, asserted that “the importance of this case for the nation's economy, landowners and chamber members cannot be overstated. The claim to sweeping agency power uncritically accepted by the court of appeals allows the service to burden private property across the country with costly … regulation virtually at will.”

Case Western Reserve University School of Law professor Jonathan Adler wrote that the Weyerhaeuser case could implicate “broader questions about the scope of federal regulatory authority over private land” and could be the next in a series of cases in which the court has narrowed the scope of environmental laws.   

U.S. Solicitor General Noel Francisco defended the service's action in a brief that urged the high court not to take up the case. “Based upon the extensive administrative record, the service concluded that limiting the critical-habitat designation to occupied habitat would be 'inadequate to ensure the conservation of' the dusky gopher frog.”

Monday's brief session also marked an end to the drought of opinions so far this term. The justices handed down three decisions—the first court rulings since last Nov. 8.

One of the rulings, National Association of Manufacturers v. Department of Defense, a Clean Water Act case, was another win for Mayer Brown's Bishop, who argued the case for the manufacturers' group. The other rulings were Artis v. District of Columbia, a civil procedure case, and District of Columbia v. Wesby, a Fourth Amendment qualified immunity decision.

Four justices—Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito Jr. and Sonia Sotomayor—were absent from the bench on Monday, not unusual for the last sitting before the court's long winter recess. Most if not all were already traveling for public appearances.

Sotomayor's absence was of special interest because on Jan. 19, according to a court spokeswoman, she “experienced symptoms of low blood sugar at her home … She was treated by emergency medical services and is doing fine.” But Sotomayor, who has diabetes, was away from the court on Monday for a different reason: She was traveling for an iCivics event in Seattle.