An Endangered Frog Ends Up In The Regulatory Swamp

The Trump administration unveiled its main effort to overhaul the Endangered Species Act on July 19, when the Interior and Commerce Departments proposed important changes to the law.

They include letting the public know about the economic trade-offs involved in protecting endangered species, affording “threatened” animals less protection than “endangered” ones, and giving regulators greater flexibility to lessen the area of so-called critical habitat a species might need to survive (more on that below).

The proposed changes would make the enforcement of the law altogether more sensible and transparent, which is much needed.

In its role administering the law, the U.S. Fish and Wildlife Service (FWS) has made some incomprehensible decisions, such as one intended to protect the dusky gopher frog.

In the amphibian equivalent of a shaggy-dog story, the government is trying to seize control of land it does not own, to protect an endangered species of frog that does not live there, to force private landowners to tear down a healthy native forest, and to install at landowner expense a new forest the landowner does not want.

The dusky gopher frog, which is about the size of a garage door remote, was known as the Mississippi gopher frog (after its home state) until 2012 when the Fish and Wildlife Service began to consider taking control of land in Louisiana to protect the critter and changed its name.

Some of these frogs had once resided in Louisiana, but not, apparently, since 1965. The reason for that is that the land in question became inherently unsuitable for sustaining the frog, which needs three elements to survive:

(1) ephemeral ponds (depressions in the ground that hold water for a period of time following snowmelt and spring rains but typically dry out by mid-summer) for breeding,

(2) open canopy forest close to the ponds that is maintained by frequent fires, and

(3) upland habitat with abundant native herbaceous groundcover.

Of these three, the Louisiana land in question has only the ponds to offer the frog. Instead of open canopy forest, the land is populated with what the Fish and Wildlife Service described as plantations of closed-canopy loblolly pines.

Moreover, it lacks suitable upland habitat for the frog to live. Thus, with the wrong trees and the wrong ground cover, it’s not surprising that the frog does not, in fact, reside there.

That doesn’t matter to the U.S. Fish and Wildlife Service, which aggressively sought to designate as critical habitat areas that have not been occupied by the frog species for more than half a century.

As the case worked its way through the court system, the Fish and Wildlife Service changed its regulations (in early 2016) to say explicitly, in terms worthy of the “Newspeak” in Orwell’s “1984,” that “unoccupied areas do not have to presently contain any of the physical or biological features” that are essential to the species’ survival.

None of these contortions by the feds was necessary.

As NOAA, another federal agency that administers the Endangered Species Act, points out on its website, “Critical habitat is defined as specific areas…outside the geographical area occupied by the species if the agency determines that the area itself is essential for conservation” (emphasis added).

In other words, the Fish and Wildlife Service has tortured logic to conclude that a specific plot of land in Louisiana is essential for conservation, in spite of the land in Louisiana lacking two of the three elements necessary for the dusky gopher frog to survive there. (And consider also that the frog breeds and lives in two sites in Mississippi.)

As one of the petitioners to the Supreme Court, the Weyerhaeuser Company, described in a brief, in order to achieve actual habitability for the frog the Fish and Wildlife Service is telling owners of this “critical habitat” that they must take several draconian actions.

These would include:

• chopping down their closed-canopy, loblolly pines and replacing them with open-canopied longleaf pines;
• burning the new forest with “frequent fires” to “support a diverse ground cover of herbaceous plants,” in spite of acknowledged “landowner concern” and “negative impacts” of such fires;
• terminating “on-going timber management of the site, which precludes burning or planting longleaf pine trees”;
• allowing most or all of the land to be “managed” as a refuge for the frog at a cost of tens of millions of dollars in lost development value, and
• agreeing to “frog translocations.”

Another impetus for reform of the Endangered Species Act is that the Fish and Wildlife Service has said that it anticipates making more designations of “critical habitat” in the future outside areas occupied by a relevant species.

In practical terms, this means that, if the courts uphold the actions of the FWS and Trump administration officials fail to rein in regulators, the agency could pick any plot of private land anywhere in the United States, designate it a “critical habitat” regardless of whether an endangered species actually live there and then dictate to the landowner exactly how the land is to be used.

With more than 1,650 species listed as endangered and listings in all 50 states and the District of Columbia, almost any private land could end up as a “critical habitat.”

As Judge Priscilla Owen wrote in her dissent from the Fifth Circuit’s decision in the dusky gopher case, the practical implications of the flawed ruling are daunting:

“If the Endangered Species Act permitted the actions taken by the Government in this case, then vast portions of the United States would be designated as ‘critical habitat’ because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species.”

But here’s the problem for the Fish and Wildlife Service’s plan: The statute has a clear and unambiguous habitability requirement – that is, as a matter of law, a species has to be able to live there for land to be designated as critical habitat.

It is a line of argument that the justices are likely to find compelling. (The Supreme Court took the dusky gopher case and will rule on it in the fall.) See Also: SCOTUS will decide if Feds abused their powers choosing a frog’s habitat

As liberal Justice Elena Kagan said shortly after her elevation to the Court, “We are all textualists now,” by which she meant that the actual words of a statute matter.

Conservative justice Neil Gorsuch echoed that view when he schooled an attorney during oral arguments last year in a whistleblower case, “we don’t follow what [lawmakers are] trying to do. We follow what they do.”

The Supreme Court should hold the Fish and Wildlife Service to the clear language of the Endangered Species Act.

With that decision and the reforms proposed by the Trump Administration, perhaps the Endangered Species Act would no longer endanger property rights and common sense.

Henry Miller, a physician and molecular biologist, is the Robert Wesson fellow in scientific philosophy and public policy at Stanford University’s Hoover Institution. He was the founding director of the FDA’s office of biotechnology.

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