U.S. Supreme Court Chief Justice John Roberts Jr. Photo: Diego M. Radzinschi/ALM

Even though he may have dealt a legal setback to the endangered dusky gopher frog, Chief Justice John Roberts Jr. on Tuesday painted a colorful verbal image of the critter in a key environmental case.

Writing for a unanimous court, Roberts said the frog is “'dusky' because of its dark coloring and 'gopher' because it lives underground. The dusky gopher frog is about three inches long, with a large head, plump body and short legs. Warts dot its back, and dark spots cover its entire body.”

Roberts added, “It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Less endearingly, it also secretes a bitter, milky substance to deter would-be diners.”

Roberts' description called to mind his dissent in a 2003 case when he was a judge on the U.S. Court of Appeals for the D.C. Circuit. Dissenting from denial of en banc review in Rancho Viejo v. Norton, Roberts wrote, “The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'commerce … among the several states.'”

More recently, Roberts sounded almost like a travel writer in a 2016 case, Sturgeon v. Frost, a dispute between an Alaskan moose hunter and the National Park Service over the hunter's use of a hovercraft.

“One fall day in 2007, [John] Sturgeon was piloting his hovercraft on the Nation River … Sturgeon was headed to a hunting ground upstream from the preserve, just shy of the Canadian border. To reach that hunting ground, dubbed 'moose meadows,' Sturgeon had to travel on a portion of the river that flows through the preserve.” But three Park Service rangers came by with bad news. “The rangers ordered Sturgeon to remove his hovercraft from the preserve. Sturgeon complied, heading home without a moose.”

Roberts developed a soft spot for Alaska, which hired him to handle several Supreme Court cases, while in private practice. In a somewhat legendary brief he wrote in 2003 in Alaska v. Environmental Protection Agency, Roberts took the time to tell how the Red Dog Mine—the alleged polluter in the case—got its name.

A bush pilot in the 1960s spotted an area that looked promising for the mining of zinc and lead, Roberts recounted. Though the pilot “died before the significance of his observations became known,” Roberts wrote, “his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek … 'Red Dog' Creek.”

Legal-writing expert Bryan Garner asked Roberts in 2007 why he included the “Red Dog” history in the brief.

“You waste a couple of sentences in a brief,” Roberts replied, “but you put that in there and it's kind of interesting. Then everybody remembers that. And they're kind of invested in it, and they want to see how the story ends up, and it gives a little texture to the brief.”

In Tuesday's case Weyerhaeuser v. U.S. Fish and Wildlife Service, the story has not quite ended.

In a test of the definition of “habitat” in the Endangered Species Act, the Weyerhaeuser company and other landowners challenged the designation of a tract of land in Louisiana as “critical habitat” for the dusky gopher frog, because none of the frogs live there.

The high court remanded the case to the U.S. Court of Appeals for the Fifth Circuit with instructions to work on defining “habitat,” while also examining whether the wildlife service weighed the costs and benefits of the designation of the Louisiana land.

 

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