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Should Dried Up Tree Frog Sex Ponds Limit Property Rights?

The Supreme Court will rule on whether the Endangered Species Act has failed wildlife and private property owners alike.

|||John Pendygraft/ZUMA Press/NewscomJohn Pendygraft/ZUMA Press/NewscomThe Supreme Court hears the first case of its new session tomorrow. The subject of Weyerhaeuser Company v. U.S. Fish and Wildlife Service is a shy, endangered frog, known among biologists for a call said to resemble an old man snoring.

Only about 150 dusky gopher frogs survive in the wild, and all of them are in southern Mississippi. That didn't stop the Fish and Wildlife Service from designating about 1,500 acres of private property in St. Tammany Parish, Louisiana, as critical habitat for the species in 2012. The designated acreage lies within the frog's historical range, but it's now part of dense commercial timber plantation that is nothing like the open-canopied habitat the amphibian needs.

The yearslong legal dispute over the frog demonstrates how the Endangered Species Act has failed wildlife and private property owners alike. The statute may have been written with good intentions, but it often punishes landowners in ways that have nothing to do with recovering species. The act makes enemies out of the private landowners who provide the majority of habitat for imperiled species.

The government's critical habitat designation in St. Tammany Parish hinges on five seasonal ponds that are—or, more exactly, were once—crucial for the dusky gopher frog's breeding cycle. The frog lays its eggs in shallow ponds that dry up completely in the summer, making it impossible for predatory fish to survive in them.

The Fish and Wildlife Service decided that these five ponds, which are part of much larger tract of timber leased by Weyerhaeuser and owned by New Orleans resident Edward Poitevent and his family, qualified the area as "essential" for conserving the species under the Endangered Species Act. Still, the agency admitted that "the surrounding uplands are poor-quality terrestrial habitat" for the species.

Even if the Supreme Court backs the feds, it's unclear how the agency's designation could actually help the frog. The property owners can still use the land as a timber plantation, and the government can't force a private citizen to actively engage in species recovery, let alone expend the money and effort it would require in this case to remake the landscape to support the frog.

"They don't care," Poitevent says. "Their job is to find a habitat. The consequences are not their problem."

According to the government's own analysis, the consequences could be as much as $34 million. That's the estimated value of the 1,544 acres, which lie north of Lake Pontchartrain in what has been described as "the boomingest corner of the state." Due to the area's potential, it was rezoned for development a few years ago.

The Endangered Species Act makes it illegal to harm not only an endangered species but also its habitat. This produces perverted incentives. Consider the case of the red-cockaded woodpecker, which has been listed as endangered throughout much of the U.S. South for decades. Landowners in North and South Carolina now harvest timber early to make sure their land never contains the old-growth pines that are prime habitat for the bird. This "preemptive habitat destruction" limits the woodpecker's prospects but ensures that property owners avoid the regulations that an endangered species might bring.

That's not exactly what the act's architects had in mind when they passed the law. The Berkeley law professor Holly Doremus has noted that discussion of the act was mainly about "charismatic species like grizzly bears, bald eagles, and timber wolves," and that "overhunting" was cited as a much greater concern than habitat destruction. Relatedly, attorney Shannon Peterson has argued that "no one in Congress contemplated that the prohibition against taking a listed species might lead to the regulation of land use activities on private property," adding that legislators "also failed to make the connection between habitat degradation and the taking of a species."

Maybe the act's modern shortcomings can be explained as a massive dereliction of duty on the part of the 93rd Congress. And given the law's broad powers to restrict land uses on private lands, many interest groups have emerged that fight hard to preserve its authority. But the fact remains that the act doesn't functionally resemble what its crafters intended, and that it can punish private landowners in ways that are not at all related to conservation.

Poitevent says that the government has in effect decided his land should be "potential backup" habitat for the frog. But your backyard could theoretically serve the same purpose. "You're not gonna spend enough money to turn it into frog habitat," he says. "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."

Photo Credit: John Pendygraft/ZUMA Press/Newscom

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  • Inigo Montoya||

    This is a good illustration of the problem of statism. Far too many people have a childish expectation that government will or even should try to solve various problems. In practice, the best case scenario is government will proceed with some well-intentioned legislation (and that's best-case) which will either be ineffectual or actually have negative consequences, or both.

    And on top of that, the lack of effectiveness comes at a cost that is astoundingly out-of-line: typically several times the going rate for whatever goods or services being purchased.

  • Scarecrow Repair & Chippering||

    I long ago came to the conclusion that while governments may theoretically sometimes succeed just by sheer chance, I have never seen it, and the shoe is on the other foot: it is up to statists to show where government has done anything well or ever succeeded in any endeavor. My default assumption is that whatever government tries to do, it will fuck it up, and then, to make matters worse, because it dare not admit it has ever screwed up, it will pile on new regulations without end.

    Of course, in reality it doesn't matter that neither I nor anyone else has ever seen any government competence; government will always exist and screw things up, and statists certainly have no need to prove any competence at any time.

  • Stephen Lathrop||

    If you take government incompetence as an axiom, you will be required to discount to zero every evidence to the contrary, or abandon your axiom and start over. You ought to consider the latter option. If you wanted to, you could use grizzly bears, whooping cranes, American alligators, Bald Eagles, California condors, or peregrine falcons as a new point of beginning for your thinking about government.

  • Migrant Log Chipper||

    You keep trying to convince us you are a statist, boot licking moron. You can stop any time as you've proven your case.

  • Number 2||

    "That's not exactly what the act's architects had in mind when they passed the law. The Berkeley law professor Holly Doremus has noted that discussion of the act was mainly about "charismatic species like grizzly bears, bald eagles, and timber wolves," and that "overhunting" was cited as a much greater concern than habitat destruction."

    Oh please. If I had a dollar for every law enacted that went beyond the bulldinky that was "discussed" as a justification for the law when it was proposed, I could retire tomorrow. It is standard operating procedure for all legislative bodies. Rest assured that the insiders and the interest groups with whom they were sympatico knew exactly what they were doing. That is why all legislation and regulations need to be studied in detail before they are enacted, and why sponsors' statements, press releases, campaign rhetoric,etc, should be read with extreme skepticism.

  • BadLib||

    Interestingly, this case is the first one on the Supreme Court hearing calendar this term. When the oral arguments are heard this Monday, the court will have only 8 members because of the delay in confirming Kavanaugh. I won't be surprised if this comes down to a 4-4 decision leaving the lower court's ruling in place but leaving the issue unresolved nationwide.

  • Brett Bellmore||

    Making sure Kavanaugh wasn't confirmed in time to take part in this year's session was one of the goals of the delay, so "Mission accomplished!"

  • Hank Phillips||

    But whut about snail darters? Baby harp seals?

  • Kazinski||

    That might provide an opportunity for one of the 4 Liberals to craft a compromise with the chief justice to tighten the standards for such takings, rather than throwing it all out.

    Who does Kagen want to craft the controlling opinion, herself or Kavenaugh? A 5-3 compromise might be a better outcome from her point of view that is established precedent, than a 4-4 tactical victory followed by a 5-4 loss down the road.

  • Brett Bellmore||

    The biggest issue here is that a pond can't be part of the habitat for a frog that doesn't live anywhere near the frog.

    So it's just a power grab, probably in anticipation of some day wanting to reintroduce the nearly extinct frog to areas where it doesn't currently live.

  • Stephen Lathrop||

    This is just a land speculation game. You find some kind of land that could be more valuable if you got rid of an existing problem or regulation, you option the land, and then you see if you can get rid of the problem. If not, you are out the price of the option, which could be peanuts. If you get lucky, you make big bucks. Helping folks play that game is not a great reason to push to extinction species such as Whooping Cranes or Bald Eagles, among many others.

  • Kazinski||

    Any actual evidence that is the case here?

    The truth is very few people are going to invest their money in a play that will only hit paydirt way down the road if and only if their cause is one of the very few cases the supreme court hears every year.

  • Stephen Lathrop||

    Right you are, Kazinski. Which is why folks with an abiding interest—like big-time land developers—fund cases like these, to spread the payoffs to as many similarly-interested parties as they can. To see a model of how that works, just take a look at the Pacific Legal Foundation web site. Come to think of it, I should take a look to see if they have an interest in this case. It's the kind of thing they do.

    If a case like this one is going to the Supreme Court, it often gets presented publicly as some beleaguered ordinary person under attack by big government. But when you look into it, you may find massed corporate interests organizing it, funding it, and contributing the legal expertise. Take a look at PLF's list of cases for examples.

  • Brett Bellmore||

    It's an existing tree farm, and the EPA's regulatory action came after it was established. So you're positing retro-causality? They bought the land to run a tree farm in the assumption that, years later when the EPA suddenly up and decided to tell them what they could do with the land, they'd win a Supreme court ruling giving them back the rights they'd already had in the land?

    You're just trying to rationalize that the private sector is somehow the villain here.

  • Stephen Lathrop||

    From the Federal response to comments:

    The designation of critical habitat does not impose a legally binding duty on private parties. Activities that do not involve a Federal agency, Federal action, Federal funding, or Federal permitting, will be unaffected by the designation of critical habitat. Private land use activities, such as farming and silviculture, would be unaffected.

    What are you complaining about?

  • Stephen Lathrop||

    Kazinski, see, it's just what I told you—land development, beleaguered ordinary person, PLF, and all. This is from the PLF web site:

    As a child, Edward Poitevent's family cut down Christmas trees on their lumber-rich land in Louisiana, and one day he'd like to leave the property to his own children. But federal bureaucrats jeopardized his legacy when they declared nearly 1,500 acres of his family's private land as a critical habitat for the dusky gopher frog—a species not seen in the state for more than 50 years. Neither the Endangered Species Act nor congressional intent justifies such government-sanctioned property theft. Represented by PLF, Edward sued and on October 1st, 2018, he will join another affected property owner, Weyerhaeuser Company, at the U.S. Supreme Court to defend their constitutionally protected property rights.

    That first sentence is rich—and oh so redolent of PLF-style public relations. Poitevent is quoted elsewhere saying he stands to lose millions in land development opportunities. But he gets a huge, grandfatherly-looking portrait right above that text on the PLF site.

  • Hank Phillips||

    Look at the bright side. If the critters were at all useful, like the Colorado River toad--a source of DMT and inspirer of Carpe Coaxit T-shirts on the UT campus--government death squads would converge from all points of the compass to make the Nazi Final Solution efforts look like a marshmallow toasting. Another thing, there are armored catfish in Brazil that hibernate in dry mud till the next rainy season. I do not know if they eat frog roe.

  • Deconstructed Potato||

    frog roe

    Not if it gets frog overturned they won't.

    *awkward silence*

  • Stephen Lathrop||

    The designated acreage lies within the frog's historical range, but it's now part of dense commercial timber plantation that is nothing like the open-canopied habitat the amphibian needs.

    That might or might not be a description of an endangered species violation that already happened. A time line would be helpful. I suggest it ought to matter legally if the land was taken out of frog habitat after the passage of the endangered species act. At a minimum, if a violation did account for the change, it would be pretty stupid to characterize as "punishment," any requirement to put the land back the way it was.

  • Vitae Drinker||

    Environments change.

  • Stephen Lathrop||

    Yup. But the rate of change matters enormously. Also the direction of change—is it random, or is it purposeful? The land development industry has been a source of high-speed, highly purposeful environmental change, on a massive scale. No reasonable comparison to natural environmental change is possible.

  • Migrant Log Chipper||

    Keep licking those boots, stevie,,,,,,

  • Ben of Houston||

    It was taken out of frog habitat over a century ago. The frog hasn't lived in Louisiana since the 19th century

  • Stephen Lathrop||

    Fair comment, Ben. Where do I find out about that?

  • Stephen Lathrop||

    So, here we are. The issue is not as presented here. The issue is future land development:

    The family of Edward Poitevent II of New Orleans owns most of the property in question in St. Tammany. The government's actions, he said, amount to a land-grab that could cost his family millions of dollars by blocking future development.

    I get that libertarians, or at least the more benighted libertarians, think future land development opportunities are a sacred god-given right, a right worth any number of species extinctions. I just disagree.

    More generally, until libertarians come up with some kind of reasoning to reconcile libertarian ideology with the notion of a public commons, public acceptance of libertarianism will be limited accordingly.

  • Brett Bellmore||

    The frog doesn't live there anymore, so building houses there doesn't contribute to its extinction.

  • Tell It Right||

    Neither is Judge K residing at SCOTUS, where on a case like this he'll be missed. Oh, well. I guess people who call themselves "libertarians" got what they wanted. :)

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