Appeals court won't re-hear the 'dusky gopher frog' case

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Advocates for an endangered species of frog have won a victory in a case that's headed for the U.S. Supreme Court.

A federal appeals court in New Orleans has refused to revive an environmental case involving the "dusky gopher frog."

Last year, a three-judge panel of the 5th U.S. Circuit Court of Appeals rejected a Louisiana business's attempt to keep the federal government from listing its timberland as essential for the frog's future.

On Monday the full court voted 8-6 against re-hearing the case.

The frogs now live in some parts of Mississippi but once were found in Alabama and Louisiana as well. Environmentalists say the Louisiana land in question contains a type of pond essential to the species' survival.

The case next goes to the Supreme Court.

The majority offered no comment Monday. Judge Edith Jones wrote a strongly worded 30-page dissent on behalf of the six-member minority. Among her arguments: the habitat in question contains one, but not all, of the features deemed necessary for the dusky gopher frog's survival.

Jones said the appeals court's majority applied federal law incorrectly and the landowner should not be prohibited from developing land where the frog cannot "naturally live and grow."

"She agreed with us that non-habitat can never be critical habitat," said Reed Hopper, an attorney for the Pacific Legal Foundation, which represents landowner Markle Interests LLC. He confirmed that a Supreme Court appeal is planned.

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