The dusky gopher frog is small and stout, about three inches long, with warts on its back and a guttural call that sounds like a snore. It lives in the ephemeral ponds of longleaf pine forests in Mississippi. And it’s at the center of a new Supreme Court case that pits a major global timberland owner against US government efforts to bring the frogs back from the brink of extinction.
Only 100 dusky gopher frogs remained in 2001, when the US Fish and Wildlife Service (FWS) declared the species endangered. By 2012, with conservation efforts, there were 250 adults, and the agency had formulated a grand plan to save the frogs—including designating 1,544 acres of Saint Tammany Parish, Louisiana as a “critical habitat” for recovery. That was bad news for the global timber company Weyerhaeuser and the LLC Markle Interests, which own or control all those acres, because the designation impacts potential development—making the land less valuable. Calling the land a “critical habitat” doesn’t make those acres government property, but it does interfere with the landowners’ use.
Weyerhaeuser and Markle Interests say the government is overreaching. After all, the dusky gopher frog doesn’t currently live on the Louisiana land designated as essential for its survival. What’s more, these frogs are finicky about their habitats, and they can’t live on the land as it is—it would have to be overhauled.
So far, the companies haven’t had much luck in court. They challenged the “critical habitat” designation in the eastern district court of Louisiana in 2013, but the court found the FWS reasoning sound and legal. The Fifth Circuit Court of Appeals in 2016 affirmed that decision, and rehearing was denied. Last year, Weyerhaeuser petitioned the high court for review. And on Jan. 22, the US Supreme Court agreed to review the case of the dusky gopher frog, or Weyerhaeuser v. US Fish and Wildlife Service (FWS).
The nine justices this fall will consider whether the 1973 Endangered Species Act (ESA) allows the FWS’s interpretation of “critical habitat.” The case perfectly illustrates the difficulty of conservation debates, asking how far the government can go to save an endangered species. At first glance, the issue may seem simple—either you’re for frogs or for big business. But in fact, the matter is complicated. The case demonstrates how many competing interests there are to consider when it comes to land use, including those of humans who’ve been ousted from their natural habitat.
For the love of frogs
In its petition, Weyerhaeuser notes that for the dusky gopher frog to recover and breed, the land in question must be deforested, reforested, and regularly maintained with fires. As such, the company argues that the land can’t possibly qualify as essential to the endangered species’ survival, which is required by the Endangered Species Act for a “critical habitat” designation.
The company admits a species needn’t already occupy a designated habitat for it to be deemed essential territory under the law. But it says that, in this case, the terrain just doesn’t qualify because so much work would be required to turn the acreage into a viable home for the rare amphibians. Weyerhaeuser attorneys explain what the frog needs in their brief:
- For breeding, small isolated, ephemeral ponds embedded in open canopy forest;
- Upland, open canopy forest close to breeding ponds for non-breeding habitat, maintained by fires supporting an open canopy and abundant herbaceous ground cover; and
- Upland habitat connecting breeding and non-breeding grounds and allowing movement between them, with open canopy and abundant native herbaceous species produced by fires.
These three elements are essential to support the life of the species. If one is missing, the frog will not survive. The company argues that, right now, the land has only one of those elements—the ephemeral breeding ponds.
The government admits that turning the land into a proper home for frogs will take work. But the Department of Justice, representing the FWS, wrote in its 2017 high court brief opposing review that the agency chose the land based on years of extensive scientific research and evaluation, as well as expert recommendations. The land contains five ephemeral ponds essential to the frogs’ survival, which is more of these critical bodies of water than most places have. And the frogs could move between breeding and non-breeding grounds. What’s more, the dusky gopher frog did once live on the land—albeit back in 1965. Another advantage: the land is farther away from other dusky gopher habitats in Mississippi, which means a drought or catastrophic event in one area wouldn’t wipe out the entire species of frogs during recovery.
Weyerhaeuser and its many allies argue that the federal government, based on this case, could essentially turn any backyard into a critical habitat under the ESA. Since the government’s endangered species list contains 2,000 arachnids, amphibians, birds, crustaceans, cetaceans, fish, mammals, plants, and reptiles, the entire US could transform into a nature conservatory! Depending on your position, that may sound delightful, or not.
Still, the company isn’t against nature. Quartz spoke to an attorney with knowledge of the case on Jan. 28. He says Weyerhaeuser supports species recovery plans and wants the dusky gopher frog to prosper. It’s the extensive government reach that offends here, given that the amphibian’s not now living in the designated habitat and that its return to Louisiana involves damaging the land and its monetary value.
The company isn’t alone in opposing FWS. In August, interested parties filed 12 amici briefs—including Alabama and 17 states, the libertarian think tank Cato Institute, Saint Tammany Parish in Louisiana, and energy and electricity concerns, among others. All have different reasons for disagreeing with the government’s interpretation of the law, but they agree the feds went too far designating the acreage a “critical habitat.”
In defense of FWS, the DOJ says (pdf) that Weyerhaeuser’s characterization exaggerates the case and its ramifications. In fact, the government argues, a “critical habitat” designation just imposes responsibilities on government agencies to follow certain processes if development in those areas is planned. It’s not a cooption of the land, but a protection of endangered creatures that may be impacted by activities on it.
The FWS, which came up with the plan, is keeping quiet for now. The Supreme Court will hear the case in October, and the government won’t file arguments until August. Linda LaClaire, a wildlife biologist at the Mississippi Ecological Services office of the FWS, associated with the dusky gopher frog recovery plan, told Quartz on Jan. 31 that the agency cannot comment on pending litigation.
The timber company’s land is located in Saint Tammany Parish, which is also affected by the dusky gopher frog decision. Saint Tammany Parish is responsible for zoning in the 1,544 acres designated as critical habitat for the dusky gopher frog. It’s not happy about the FWS decision either.
In the brief filed to the hired court in August, the parish argues that the critical habitat designation is bad for the area’s residents: It imposes unwanted land use restrictions, potentially endangers citizens with the forest fires necessary to maintain the habitat, and taxes a parish already dealing with an influx of new residents. Saint Tammany calls itself “the primary refuge of thousands of people who fled their homes from the onslaught of Hurricane Katrina.”
It asked the high court to consider “the rights of the residents … and the landowners to determine the orderly growth of the Parish.” It wants justices to “weigh heavily” those locals’ rights against “an unwarranted attempt by the federal government to assert its excessive authority over the privately owned land where the frogs have not been seen in over 50 years and the habitat no longer exists.”
Art of interpretation
The justices will likely feel for both the residents of the Louisiana parish and the dusky gopher frog. But whatever happens on the disputed acres in Louisiana, Weyerhaeuser will probably be fine in the end. The company controls or owns 13 million acres of timberland in the US alone, and is one of the largest global property holders.
As for Rana sevosa, the dusky gopher frog, it has already acquired some nice new property in Mississippi. More than 170 acres were protected from development under a land purchase announced in 2015 by the Center for Biological Diversity, Mississippi Chapter of the Sierra Club, Gulf Restoration Network, the Land Trust for the Mississippi Coastal Plain and land developer Columbus Communities. Now held in trust for nature, the land is meant to help ensure that the rare amphibian, and the longleaf pine forest it inhabits, survive.