- - Thursday, September 20, 2018

ANALYSIS/OPINION:

A piece of land in Louisiana has been designated by the federal government as a critical habitat for a rare frog, although the dusky gopher frog does not live there, and never has. Nevertheless, frog trouble might be ahead for human people who do.

To make life congenial for the frog, the federal government intends to compel private landowners to level a healthy native forest of “closed-canopy” loblolly pine trees and plant new “open-canopied” longleaf pines, torch the land with frequent fires to “support a diverse ground cover of herbaceous plants,” and enable 60 percent to 100 percent of the area to be “managed” as a “refuge for the frog.”

That might cost as much as $30 million, and the landowners might be required to pay for it. The case, Weyerhaeuser v. United States Fish and Wildlife Service, is working its way now through the courts and it might be one of the first cases that Brett Kavanaugh will face if he is confirmed as a justice of the U.S. Supreme Court.

At stake is the power and reach of the federal government over all land in the United States. The private land in question is not actually the home of the frog, and under current conditions the frog could not survive in St. Tammany Parish (as counties are called in Louisiana), its proposed new habitat.

This particular frog was called the “Mississippi gopher frog” until the U.S. Fish and Wildlife Service changed its name in 2012, perhaps to make it sound more like a native Mississippian, and to erase any suspicion that, being a native of Mississippi, it might be respectful of the memory of Robert E. Lee. (Guilt by association has become fashionable in certain precincts.) In any event the population of adult gopher frogs was down to 100 adults early in this century, and since then both the captive and wild populations of the frog have prospered and expanded in zoos and Mississippi breeding sites.

Under the direction of the Fish and Wildlife Service, the dusky gopher frog’s realm has expanded from 1,957 acres to a critical habitat of 6,477 acres of living space in Mississippi and Louisiana. The 1,544 acres in Louisiana are in St. Tammany Parish but without “drastic changes to the landscape,” says the Weyerhaeuser brief, those acres wouldn’t be gopher frog-friendly.

To live, the 3-inch amphibian needs “ephemeral ponds,” an “open canopy” forest and an “upland habitat connecting breeding and non-breeding grounds.” To accommodate, this wart covered, dark brown or black frog would have to be relocated to Louisiana. The Supreme Court will read the Constitution and the Endangered Species Act, which governs certain federal jurisdictions over public and private land, and decide. In 1978, Congress amended the species act to limit the government’s power to appropriate private lands as “occupied critical habitat” and “unoccupied critical habitat” that are “essential for the conservation of the species.”

Justice Priscilla Owen of the U.S. Fifth Circuit Court of Appeals observed that “the ponds cannot themselves sustain a dusky gopher frog population.” She observed that the Endangered Species Act does not give the federal government the authority to designate areas of “critical habitat” based solely on “one feature of an area when that one feature cannot support the existence of the species and significant alterations to the area as a whole would be required.”

When exposed to bright light or threatened, the dusky gopher frog will cover its face with its “hands.” It’s under no threat in Louisiana, where it does not now exist. But if drastic changes are taken to ensure the frogs’ relocation across thousands of acres, with precedents being precedents, that could lead to drastic measures to ensure the propagation of all endangered or even extinct animals. If scientists someday resurrect the dinosaurs, as some have suggested might be possible with recovered DNA, the dinosaurs might one day seize Capitol Hill. What a fine frog stew the rest of us would find ourselves in. Bon appetit!

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