New Endangered Species Policy Will Protect Both Property Rights and Rare Frogs

There’s no need to pit property owners against imperiled species.


Over the past decade, a shy frog has been involved in one of the most high-profile legal cases involving an endangered species. On Monday, after more than a year of weighing proposals and public comments, the Department of the Interior unveiled several changes to the way it implements the Endangered Species Act.

In July, an eight-year legal saga involving the dusky gopher frog came to a close when the Fish and Wildlife Service agreed to remove the property of Edward Poitevent, a Louisiana landowner, from its "critical habitat designation" for the species. The designation delineates areas that are important for the recovery of a species, but often comes with burdensome land-use restrictions.

In 2011, the government included about 1,500 acres of Poitevent's property because the land encompasses several rare ponds conducive to the frog's breeding needs. Yet the government admitted "the surrounding uplands are poor-quality terrestrial habitat for dusky gopher frogs" because they lack the particular timber ecosystem the amphibian requires. Moreover, the frog has not been documented in the state for half a century—the surviving population, which numbers about 150, is in southern Mississippi. 

It's no surprise that Poitevent and his family weren't interested in trying to help recover the frog, which would have been a costly, laborious, and uncertain endeavor of its own. The government's own estimate found that the designation could have cost the Poitevents up to $34 million in lost development value. In deciding Weyerhaeuser Co. v. U.S. Fish and Wildlife Service last November, the Supreme Court unanimously ruled that the government agency had overstepped its bounds by including the 1,500 acres in its designation. The justices essentially declared that an area must actually be habitable to be designated as critical habitat for the species in question.

When the Endangered Species Act pits rare species against the people who own habitats that could help in their recovery, no one wins. That's why the policy tweaks announced this week are sensible. 

The department's revised regulations clarify that "areas where threatened or endangered species are present at the time of listing be evaluated first before unoccupied areas are considered." The aim is to reduce "the potential for additional regulatory burden that results from a designation when species are not present in an area."

When I met Poitevent in 2018, he was miffed that the government would designate his land as "potential backup habitat," as he phrased it. "They don't use that phrase exactly," he said, "but that's what it is. But so is your backyard. You're not gonna spend enough money to turn it into [a] frog habitat. So how does this benefit the frog? It doesn't, and it won't. Yet all they tell you is they need our land to save the frog."

The revisions also explain that for unoccupied areas to be designated as critical habitat, they must "contain one or more of the physical or biological features essential to the species' conservation." For instance, a more deft designation that included the rare ponds in Louisiana yet excluded the "poor-quality terrestrial habitat" that surrounded them might have survived Supreme Court scrutiny in Weyerhaeuser.

Critical habitat designations can threaten property values or tie landowners' hands by limiting land uses, and legal disputes often leave all sides frustrated when they drag on for years. Even if a tract of land might conceivably qualify as "backup" habitat, when a rare species doesn't inhabit the area it makes sense to focus scarce recovery resources in places where they have a better chance of succeeding.

The dusky gopher frog went all the way to the Supreme Court, yet the end result of the legal battle seems not to have benefited the species in any tangible way. Perhaps the time, energy, and money exerted on the case could have been better spent in Old Fort Bayou, Mississippi, where biologists from the Nature Conservancy have had their boots in the mud working to recover the frog for more than a decade. 

Hopefully this change to endangered species policy will avoid similar conflicts with landowners—and give them better incentives to become partners in efforts to conserve imperiled wildlife.

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  1. What is the moral argument for artificially sustaining an animal population that otherwise could not sustain itself on it’s own? Just because we can?

    1. It seems to rest on the theory that humans are despicable and all other species should take precedence.

      I’m sure there are non-human predators who like tasty frogs, but they too are non-human, so they are not on the list of enemies of the frog.

    2. is because we can not enough?

      1. Obviously depends on the cost

    3. Sustain itself on its own with or without humans steamrolling over their existence?

      No ESA, no balled eagle. Something to keep in mind.

      1. Balled? I need a nap.

        1. Right but human well-being takes precedence. And a frog is no balled eagle!

          1. Do bald eagles kill a lot of humans?

            1. Only indirectly through housing and farm land shortages.

        2. I prefer cubed eagle myself

          1. in vietnamese garlic hot sauce.

        3. And an education.

      2. The ESA didn’t save the bald eagles, this is a myth. Probably the end of DDT and artificially increasing salmonoids populations (hatchery salmon and Steelheads) helped the bald eagle, plus a concerted effort by private land owners and conservation programs were the biggest contributors to it’s success. In fact, there is almost no species that the ESA has actually recovered and a number that continue to decrease or have gone extinct despite billions spent trying to save them.
        Also, quite often the science of designating critical habitat is flawed. The gopher frog is just one example. The most famous though is the spotted owl. Studies now show it does better in logged forests then in old growth, which lacks prey because there is less habitat for prey animals in old growth forests. They even knew it at the time and went forward with their rules anyhow. It was a blatant abuse of power that resulted in the destruction of whole communities in the Pacific Northwest all for nothing.

    4. I have been asking questions like that for decades. Nobody seems to want to answer them, but they DO get ‘please sign this petition to protect endangered species’ canvasers (sp?) to stop pestering me.

      My top questions?

      If the passenger pigeon flocks darkened the skies, and they were primarily seed eaters, weren’t they a serious pest? The stories about them always make it sound as if they were shot simply for the pleasure of shooting them. It seems likely to me that they were considered a serious threat to farmers and an unhygienic nuisance to towns.


      There have been many species of island dwelling birds that lost the power of flight by reason of an absence of predators. It is my understanding that these are considered evolutionary dead ends. Curious, but likely to die out if ANYTHING new arrives on their islands that considers them tasty.

      So, why are we supposed to care so much about the dodo?

    5. That there is a high likelihood that we humans accelerated its evolutionary trajectory.

      You can’t very well kill the habitat of an animal, then blame the animal for not being able to survive. Evolution happens much slower than that.

      And a goodly portion of species loss is due to humans moving in on their habitats.

      This isn’t to say that we should take render people unable to use their land.

      1. There is growing evidence that evolution may not always be a slow and steady progress, that evolution may occur in a fairly short period of time if conditions are right. Specialist species tend to be the least adaptable, while more generalist creatures are able to adapt much quicker. It pays to be a generalist, evolutionarily speaking. Specialist tend to be a evolutionary dead end.

  2. “Perhaps the time, energy, and money exerted on the case could have been better spent”

    Yeah but then the lawyers who wrote the law wouldn’t get paid defending the law. I say all government lawyers should be personally held financially responsible for their work.

    1. I think we just need an apportioned number of government lawyers. Treat it like the House so that each State only gets so many layers. With this they would have to be more picky about what they pursue. Just like other professions, You can do things cheap,fast,and good. You only get to pick two, however.

      1. One of the greatest lies is that being a lawyer is profitable. Many law school graduates struggle, the supply of law school graduates far outstrips the demand for lawyers, yet states continue to fund and even expand funding for law schools. We do need nurses, doctors etc, but the funding and expansion of funding for these degrees (not arguing that public funding is good or bad) remains sluggish. Despite a severe doctor and nursing shortage we see that the expansion of medical schools and nursing schools remains anemic. Politicians are lawyers, ergo they believe being a lawyer is noble and should be encouraged, despite there being an oversupply. And people wonder why conservatives and libertarians don’t trust the government to make decisions?

  3. Has no one in the federal government EVER read Darwin?
    Trying to manage wildlife is a Christian (Genesis 1:28) concept, and violates the Jefferson letter segment of the constitution.

    God blessed them and said to them, “Be fruitful and increase in number; fill the earth and subdue it. Rule over the fish in the sea and the birds in the sky and over every living creature that moves on the ground.”

    1. Genesis is originally a Jewish (Hebrew) idea. You would have been better served by stating Judeo-Christian.

  4. “New Endangered Species Policy Will Protect Both Property Rights and Rare Frogs.

    Such absurdity!
    No government official or office would dare do something that makes as much sense as this.
    What ever happened to stupidity in government?
    We’re slipping, people.
    We’re slipping.

  5. First of all, the administrative procedures act is a scam. Granting the executive branch with essentially legislative powers is breach of the Constitution in the first place.
    Aside from that, if the EPA wants to designate someone’s property as a wetland, or a critical habitat or whatever else, it should considered a taking. Therefore, the owner should be reimbursed. At the very least, should be paid to compensate for the reduction in value of the property. But that would take a SCOTUS which actually has the balls to defend the Constitution.

  6. This is a ribbeting story.

    1. i toad the water on posting

  7. Actually having to prove the animal exists on the land before you can steal it. Wow what a concept. Gotta love how long this took them to figure out.

    1. Considering in the past the EPA tried to declare a man made pond a historic wetland, and fined an Idaho family who built on land that had an accidentally blocked culvert that caused flooding. The state had blocked the culvert and the land had never been part of the flood plain or a wetland, but that didn’t stop the EPA from ruling it a wetland, until the USSC slapped them down.

  8. Really? A fucking frog and the state can tie up your land in court for years, when the stupid thing isn’t even there?

    And people wonder why government is so hated…

    1. Another Reason article in praise of rampant statism.

  9. “There’s no need to pit property owners against imperiled species.”
    Yes there is, if you want to turn property owners into unpaid caretakers.

  10. I hope this ends such incidents as the Tellico dam case. Building the dam was needlessly delayed over the fate of the snail darter fish, which also inhabited other waters but when the Cherokee sought to preserve some of their original homeland from being flooded by it the judge immediately tossed their case.

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