August 29, 2005

U.S. sued over toad at center of Roberts’ case

By Dan Whitcomb

LOS ANGELES (Reuters) - An environmental group and a
Christian prayer network have joined forces to sue the Bush
administration over the fate of an endangered toad -- the same
"hapless" amphibian at the center of a legal opinion by U.S.
Supreme Court nominee John Roberts.

The Center for Biological Diversity and Christians Caring
for Creation claim in their federal lawsuit that the U.S. Fish
and Wildlife Service has failed to protect the California
habitat of the endangered arroyo toad.

Roberts issued an opinion in a separate case involving the
arroyo toad in 2003, while sitting as a judge in the U.S. Court
of Appeals for the D.C. Circuit, an opinion that has been
criticized by liberal groups as evidence of his "radical" views
on states rights and environmental laws.

In that case an appeals court found the federal government
could use the Endangered Species Act to stop a developer from
building on land that had been designated part of the arroyo
toad's habitat.

Roberts disagreed, questioning whether "a hapless toad
that, for reasons of its own, lives its entire life in
California," could be subject to federal laws. He suggested
that it should be up to California legislators to protect the

The current lawsuit, filed last week in Riverside,
California, claims that in cutting the number of acres
(hectares) set aside for the toad from 478,000 to 12,000 in
April, the Fish and Wildlife Service has threatened to drive
the toad into extinction.

A spokeswoman for the U.S. Department of the Interior,
which oversees the Fish and Wildlife Service, could not be
reached for comment.

"It's an unfortunate commentary on the willingness of this
administration to undermine the Endangered Species Act," said
David Hogan, a spokesman for the Center for Biological
Diversity. "Despite its small size this toad needs a lot of
land to complete its life cycle."

Hogan said the center has been working since 1999 to save
the arroyo toad and called it a coincidence that the amphibian
has also surfaced in the debate over Roberts' nomination -- but
added the group was happy to take advantage of that to gain
publicity for their issue.

They have named their Web site devoted to the issue Hapless
Toad ( -- a reference to an aside by the
justice in his dissenting opinion on the 2003 case.

The liberal People From the American Way, which has opposed
Roberts' nomination, has said his "radical" view on the toad
case could extend far beyond environmental laws to areas of
federal authority including Medicare and Social Security.