The dusky gopher frog, a “shy” creature according to Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, is both endangered and the excuse for an unmitigatedly overreaching administrative action by the Fish and Wildlife Service. The Service declared 1,500 acres of private property to be critical habitat for the frog even though it hasn’t lived there for years and can’t live there now. To get there in the future, it needs to be “translocated,” something that requires consent from the property owner, which is not forthcoming. It would also require some changes in the property’s vegetation, which aren’t forthcoming either. Nonetheless, the Service has put its marker down on the property.
After the federal courts denied relief, Markle Interests, an LLC that owns an interest in the property, the other property owners and Weyerhaeuser asked the U.S. Supreme Court for help. Their request is pending.
The property, according to the lawyers who represent the Poitevent family and co-owners Markle Interests, has been in family hands for more than 100 years. After the Civil War, they started a lumber business on the property.
While it’s managed for timber today, it’s in St. Tammany Parish, outside of New Orleans, and was recently rezoned to allow for mixed-use and residential development. Its higher elevation made it desirable for residential and commercial development after Hurricane Katrina’s flooding devastated lower-lying areas. As the Service’s economic consultant noted, the property is “particularly attractive for development” because “Louisiana Highway 36 runs through [it].” So, real money is at stake, although the Service didn’t see it that way.
The frogs don’t live there now and haven’t been seen there for more than 45 years. So, even the Service says the frogs would have to be “translocated.” They can’t get there on their own because the farthest they’re known to travel is some 300 meters, and the Poitevents’ property is about 50 miles from Mississippi, where the frogs live.
Even if the frogs got there, it’s not clear that they could survive. The frogs need three things to live, but the property has only one of them. The frogs need ephemeral ponds, i.e., ponds that come and go, for breeding, and the property has those. But, they also need the right kind of forest, something the Service describes as “historically dominated by longleaf pine, adjacent and accessible to and from breeding ponds, that is maintained by fires frequent enough to support and open canopy.”
The canopy on the land is closed, not open, so here’s where a form of dark matter comes in. The Service knows it can’t make the Poitevents do anything, so it said it “hope[d] to work with the landowners to develop a strategy that will allow them to achieve their objectives for the property and protect the isolated, ephemeral ponds that exist there.” Without the property owners’ consent, though, there is no possibility of controlled timber burnings or translocated frogs.
But, nice ephemeral ponds you got there, buddy! And, as set out below, any impact on you depends on what the owners decide to do with their property and how it affects those ephemeral ponds.
Indeed, because the only thing the frogs need that is actually present on the property is the ephemeral ponds, Service’s whole claim rests on them. It transmogrifies those ponds, which come and go, into “jurisdictional wetlands.” That characterization is noteworthy because ephemeral ponds like those at issue are not part of the waters over which the United States has jurisdiction.
The Supreme Court has held that the Corps of Engineers doesn’t have jurisdiction over isolated permanent ponds. It has also said that excluding “channels containing merely intermittent or ephemeral flow” is consistent with “the commonsense understanding” of the term “waters of the United States.” Only the Obama Administration’s Waters of the United States Rule, which is facing a constitutional challenge, might strain to reach the ephemeral ponds dusky gopher frogs love.
Congress also told the Service to consider “the economic impact… of specifying any particular area as critical habitat” before acting. It also said that the Service can exclude property from critical habitat designation if, among other things, the benefit of excluding it outweighed the benefit of designating it.
When the Service did what Congress told it to, it relied on a consultant’s report that offered three alternatives ranging from $0 to $34 million. The Service declared that it didn’t think any “disproportionate costs” were likely to result from designating the Poitevents’ property as critical habitat. That declaration is just an ipse dixit. As the Service recognized, if the owners wanted to mess with the “jurisdictional wetlands,” they might have to give 60% of the property to the frog.
The case raises important questions of administrative law, which the Southeastern Legal Foundation and I addressed in a friend-of-the-court brief, but the more outrageous the agency action, the less likely judicial deference becomes.
The Service’s treatment of critical habitat and its evaluation of cost and benefit are laughable, but the property owners in Louisiana and elsewhere aren’t laughing.
In short, unless the Supreme Court intervenes, landowners can expect the Service to continue to grab private property on the flimsiest of justifications.
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