June 20, 2012

Dusky Gopher Frog makes waves!

By M. Reed Hopper Senior Attorney

On June 12, 2012, the U.S. Fish and Wildlife Service issued a controversial critical habitat designation for the Dusky Gopher Frog (formerly the Mississippi Gopher Frog) in the Gulf Coast..  The controversy surrounds the inclusion of 1,544 acres of private land in Louisiana, with a potential value of $30 million dollars, that the agency admits is not suitable habitat and may never become suitable habitat for the endangered species.  The Service designated this forested area in St. Tammany Parish as critical habitat on pure speculation.  This is a blatant abuse of agency power.  Under the Endangered Species Act, areas designated as critical habitat must actually contain the physical and biological features essential to the conservation of the species.  This area does not.  According to the Service, therefore, it may regulate any area (no matter how unsuitable) by claiming it is necessary for the protection of the species.  With 1,391 species listed as threatened or endangered across the country virtually no area is off limits to federal control.

On June 18, Fox and Friends aired a piece on this story with Edward Poitevent (the primary landowner) to which the Service took exception, claiming the piece was full of “misinformation.”  To “set the record straight” the Service responded to the piece point by point.  But as noted below, with our own commentary, the Service itself engaged in “misinformation.”

1. Steve Doocy, Fox & Friends: “Our next guest says it (critical habitat) could cost him over $30 million….”

The Service: This designation does not stop future development or land uses. This figure comes from an economic analysis the Service is required to conduct for these kinds of actions and in this case the range is from $0 to $30 million over 30 years. If planned development does not require federal funding or permitting, the cost of this designation will be zero. If federal funds or permitting are needed, we expect that future real estate development can be accommodated across a significant portion of the land designated.

PLF Response: Although the Service makes the preposterous claim that the cost of the critical habitat designation could be zero, the Service does not deny that the cost could extend to the other end of the range and cost the landowners $30 million. The latter is more likely because the landowner indicates that most of the area is wet and therefore potentially subject to federal permitting under the Clean Water Act.  This would give the federal government a virtual veto power over all land uses in the designated area.  It is incorrect for the Service to say that “This designation does not stop future development or land uses.”  The fact is, the Service does not know (nor care) what the effect on the landowners will be and won’t until a particular development project is proposed and the impact on habitat is analyzed.

2. Steve Doocy, Fox & Friends: “And what they would like to do is, the Fish and Wildlife folks, Edward, would like to designate 1,650 of your acres as a habitat for that endangered frog. What would that mean for you?”

Edward Poitevent: “Well that would mean basically that our land is taken out of commerce; we would not be allowed to develop it….”

The Service: This designation does not take lands out of business. The property in question has been used for timber production and hunting for decades. In fact, those 1,544 acres are part of the land currently being leased to Weyerhauser through 2043. We are working with willing landowners in Mississippi to conserve this extraordinarily rare frog and look forward to working with willing landowners in Louisiana. The Service has a number of voluntary, partner-based programs that make funding available to do this work and there are other partners as well doing this kind of work. We’ve recently provided Mr. Poitevent contact information to learn more about conservation banking in Louisiana, for example.

PLF Response: When Mr. Poitevent stated the designation would take the land out of commerce, he was, no doubt, referring to its $30 million potential for development, not its current use.  And the Service certainly hopes, and even expects, that the land will be “taken out of commerce” and not developed, otherwise the Service would not have designated the area as critical habitat in the first place.  But even the land’s current use is incompatible with the needs of the Dusky Gopher Frog.  According to the Service, certain areas on this private land would need to be subjected to controlled burns and revegetated in order to create the type of habitat suitable for the specie’s recovery.  As for “willing landowners,” the owners of this area are anything but willing.  They filed extensive comments in opposition to the designation.  It is only after such designations that some landowners become “willing” to manage their property for species conservation when they see the severe constraints the designation places on development and they have no other options.

3. Steve Doocy, Fox & Friends: “So they want to grab your land, essentially as a habitat.”

The Service: We don’t. It remains his land to manage. We’ve identified this land as critical habitat because it’s important to the recovery of the gopher frog. The Service offers a wide variety of tools to help from easements that would allow landowners to protect habitat and preserve a working landscape to working with partners to potentially purchase lands at fair market value from willing sellers. We have a number of other programs that make financial and technical assistance available to willing landowners on a voluntary basis to pursue conservation work on their lands. If a landowner doesn’t want to work with these opportunities, he doesn’t have to at all.

PLF Response: “It remains his land to manage.”  That’s right.  Literally, with a stroke of the pen, the Service designates private land as critical habitat subject to virtually complete federal control.  It is the landowner, not the government that bears the economic burden of the habitat designation.  Even in the absence of federal funding or a federal permit requirement, the Service can prohibit any activity it deems may harm the species, including adverse modification of the critical habitat.  And this can be enforced against the landowner by development opponents in a citizen suit.  Landowners whose property is “federalized” by critical habitat designation are not “willing sellers” in the way the Service portrays them.  They simply don’t have a choice.  Even if a development project is approved, the mitigation may be too onerous to comply.  Banks are hesitant to authorize development loans without a guarantee from the government that the property is not burdened by critical habitat restrictions; a guarantee the government is disinclined to give.  Add on top of that the threat of litigation for any approved project and the incentive to develop disappears.  The Service knows this and uses it as a means of leveraging the “cooperation” of “willing landowners” to preserve the area for species habitat.

4. Steve Doocy, Fox & Friends: “Why are they picking on you (the landowner)?”

The Service: We have been talking with Mr. Poitevent. We want to work with him and look forward to working through his concerns together. We have designated this site as critical habitat because the frog historically occurred there and it is essential to the frog’s future conservation. Again, the Service is currently working with other private landowners in Mississippi to protect habitat that can sustain these frogs, and we hope to do that in Louisiana as well, with willing landowners.

PLF Response: As noted above, the term “willing” is used . . . loosely.

5. Edward Poitevent: “Also, here there is no habitat. The trees and other elements they (the frogs) require have long disappeared.…”

The Service: This is the last and best remaining habitat for this frog in Louisiana. The kind of trees present is less important than the habitat they cover. The areas in this designation include the kinds of habitat (temporary ponds) needed to recover the gopher frog. If we cannot protect places like this, the gopher frog’s recovery is much less certain.

PLF Response: Like the term “willing,” the Service uses the term “habitat” loosely.  The 1,544 acres of designated private land is not habitat for the frog.  It hasn’t been for 50 years.  The Service admits that for the area to become habitat the physical environment would have to be changed.  In other words, the land use would have to change.  The area cannot serve as habitat now.  Therefore it was illegal for the Service to include the area in the critical habitat designation.

6. Edward Poitevent: “It would be a constant problem for us because if the frog is ever there we would have to burn the land annually.…”

The Service: We cannot require a landowner take any steps to restore his or her land in any way whether burning, planting native vegetation, or anything else. Nor can we ever reintroduce the frogs without a landowner’s permission.

PLF Response: This is why the area does not qualify as critical habitat under the law.  Its use as habitat is completely speculative.  But now that the area is designated as critical habitat, the landowner has very few land use options.  Try selling your house after the city has declared your property is needed for a street widening.

7. Edward Poitevent:It’s against the Endangered Species Act anyway. The law requires actual occupation before land can be designated as (critical) habitat.”

The Service: This is incorrect. The Endangered Species Act requires critical habitat to be designated if it is essential for the conservation of the species, whether occupied or unoccupied.

PLF Response: This may be true, but the Service’s own regulations require that designated areas include the physical and biological features necessary to sustain the species.  In violation of the law, this area does not.

What to read next