Frogs First: Should States Be Able to Develop on Their Habitat?
Few people have glimpsed a dusky gopher frog or heard its loud, guttural, snorelike croak.
If you held one in the palm of your hand, it likely would cover its eyes with its forefeet and ooze a bitter white substance from the dark warts on its back.
The defense mechanism is not enough to ensure the frog's survival.
Once widely found in the Delta states of Mississippi, Alabama and Louisiana, the frog saw its numbers dwindle to about a hundred in one southern Mississippi breeding pond, when the federal government in 2001 listed it as endangered. The Rana sevosa, formerly the Mississippi gopher frog, now numbers about 200. But only one pond suitable for breeding remains.
The U.S. government in 2012 stepped in to protect the frog's critical habitat, setting off six years of legal battles. Now, the warty amphibian has attained near-celebrity status because of a Supreme Court case that goes way beyond the little frog's future in the Deep South.
At stake are questions about how far the federal government can go to protect an endangered species' habitat, even when the species hasn't been seen there in years, without denying the constitutional rights of property owners and the economic interests of local and state governments.
Dozens of lawyers, biologists, developers, environmental and business groups, and federal, state and local officials are involved in the case, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service. The Supreme Court is set to hear oral arguments in the fall.
Twenty states have stepped in on the side of Weyerhaeuser, a timber company, arguing the federal wildlife agency overstepped its authority in declaring land with the potential for frog habitation effectively off-limits to developers. The states and Weyerhaeuser also have asked the high court to limit Fish and Wildlife's power by allowing federal courts to review its decisions to protect potential habitats from developers.
"We recognize and understand critical habitat of endangered species is important," Alabama Attorney General Steve Marshall said in an interview. "But we have an interest not only in environmental protection but to preserve the rights of landowners," he said. "We think this is an extreme case."
Marshall wrote in a friend of the court brief on behalf of the states: "The states have a profound interest in maintaining the delicate balance Congress struck in the Endangered Species Act between ensuring the recovery of listed species and protecting private property rights of citizens and the sovereign interests of the states."
(The other states are Alaska, Arkansas, Colorado, Georgia, Idaho, Kansas, Louisiana, Michigan, Montana, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, Texas, Utah, West Virginia, Wisconsin and Wyoming.)
Fish and Wildlife consulted six biologists and state wildlife experts from Alabama, Georgia, Louisiana and Mississippi and other states on the critical habitat designation. All supported its scope.
No locality has more at stake in the immediate case than St. Tammany Parish, Louisiana. But the dusky gopher frog hasn't been seen there, or anywhere in Louisiana, since the mid-1960s.
Fish and Wildlife in 2012 designated 1,544 acres on the north shore of Lake Pontchartrain, 2.4 square miles of the parish, as critical habitat for the frog. The amphibian historically lived there, and the land retains geographic features _ five temporary ponds _ that could be crucial to the frog's recovery. Critical habitat is defined as what's "essential for the conservation of the species." It need not be occupied by the species.
"It's preposterous," landowner Edward Poitevent II said in an interview.
Poitevent's great-grandfather acquired the land in question after the Civil War and ran a sawmill there. Poitevent has leased the land to Weyerhaeuser for timber until 2043.
A federal economic impact study estimated the designation could cost up to $34 million in lost development value. The "reduction in land value occurs immediately at the time of designation," the study said. Poitevent said he and Weyerhaeuser, which owns a small portion of the property, were planning to develop it into a residential neighborhood.
Conservation groups such as the Tucson, Arizona-based Center for Biological Diversity say the designation was based on good science and is necessary to save the dusky frog from extinction.
"The Fish and Wildlife Service followed the unanimous advice of frog experts in deciding to protect essential habitat of these critically endangered animals," said Collette Adkins, an attorney with the Center for Biological Diversity, which is involved in the lawsuit.
But St. Tammany Parish argues in a court brief that the federal agency's action "amounts to unreasonable usurping of local authority, which jeopardizes the economic development of the parish," in effect overruling a three-year rezoning process that resulted in the property being zoned for "Traditional Neighborhood Development."
St. Tammany is one of the fastest-growing parishes in the state. Hurricane Katrina in 2005 brought an influx of residents fleeing New Orleans less than an hour away, and growth hasn't stopped. The parish contends it needs the property to accommodate the people who are moving there, but the federal government has effectively made it off-limits.
"Our population almost overnight grew 30,000-plus," said Terry Hand, the parish attorney. "We weren't prepared." The census estimated the parish's population last year at 256,000.
Since the hurricane, the parish has worked on a new growth plan and finally has acquired the rights of way for a critical four-lane highway that's been in the planning and funding stages for more than 25 years.
But, Hand said, "we're one hurricane away from another influx of maybe 50,000 people."
Plus, voters have rejected renewing several local taxes dedicated to parish operations, forcing the parish to rely more on developer fees.
"That large piece of property cannot be developed," Hand said, "but to return it to where it would be suitable for the frog adversely affects adjoining pieces of property." The property would have to be burned periodically to restore the grassy understory the frog needs, and the controlled burns would cause smoke in adjacent areas.
The critical habitat designation does not require owners to establish a refuge or stop using the land as a tree farm. However, landowners seeking federal funding or a federal permit might be required to consult with the agency on a conservation plan.
Recovery of the frog is impossible without places where the frog can breed, and the St. Tammany ponds provide breeding habitat once common and now not found anywhere else.
Federal officials say the ponds are necessary but not sufficient for the survival of the species. The frog also needs a canopy of longleaf pines and grassy understory where it can spend most of its life in abandoned gopher tortoise holes, which give the frog its name.
Today on the property the longleaf pines and the grassy areas are gone, replaced by thickly planted loblolly pines for commercial timber. The federal agency has offered to work with the landowners to create better conditions, pending their voluntary cooperation.
Mark Miller, a senior attorney with the conservative Pacific Legal Foundation who represents landowner Poitevent, contends the critical habitat designation "locks up" the land, unnerving property owners as well as state and local officials.
For now, the federal government views the property as a backup in case a hurricane or other disaster imperils the dusky gopher frogs in Mississippi.
"All these people who cry, 'We are destroying the frog' _ well the frog can't live there," Poitevent said. "We would have to completely redo the landscape. Plant the trees the frog likes and burn it every year. But tell me this, is there a frog fire escape?
"You might as well say let's put some polar bears in Key West," he said. "You could _ if you spent the money."