The Supreme Court heard its first cases of the upcoming judicial session on Monday. Unfortunately, with former Justice Anthony Kennedy’s seat still vacant due to the ongoing Democrat-created circus surrounding Brett Kavanaugh, some of these cases may end up with 4-4 split decisions. One case in particular on its face appears to deal with an animal known as the Mississippi dusky gopher frog. The frog in question was designated by the Fish and Wildlife Service (FWS) as an endangered species back in 2001. As per the Endangered Species Act, the FWS has the authority to determine and “designate any habitat of such [an endangered] species” as “critical habitat” and “essential for the conservation of the species.” In other words, the FWS has the authority to both determine and designate whether land (public or private) should be listed as protected habitat.

The case before the Supreme Court regarding the dusky gopher frog deals with a Barack Obama-era expansion of the FWS’s definition of habitat. As SCOTUS Blog explains, “This case will rule whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.”

Clearly, the core of the issue is a question over Fifth Amendment protections. The big problem in the case of the dusky gopher frog is one of property rights. Back in 2011, the Obama administration decided to designate as protected habitat over 1,500 acres of land leased by the lumber company Weyerhaeuser, the plaintiff in the case. However, there was one glaring problem that even the FWS noted — there were no dusky gopher frogs living on this particular land. The Obama administration even acknowledged this fact, listing the property as a “potential backup habitat” for the endangered frog. Based upon that definition couldn’t almost any land be designated as “potential backup habitat”?

As Investor’s Business Daily notes, “The land in question doesn’t have the frog living on it, and the land isn’t even suitable for the frog. Nonetheless, in 2011 the U.S. Fish and Wildlife Service declared his land "critical habitat” because, with modifications, it could potentially serve as a home for the endangered dusky gopher frog.“ Like the Obama administration’s redefinition of navigable waters, this is a case of clear government overreach. But unfortunately, the High Court’s decision may end up being split.

(Edited.)