The Government Is Controlling Private Property to Save Frog Species Not Seen in 50 Years

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dusky gopher frog

dusky gopher frog

The U.S. Fish and Wildlife Ser­vice (USFWS) is seek­ing to pro­tect the dusky gopher frog on the Endan­gered Species List by des­ig­nat­ing over 1,500 acres of pri­vate prop­er­ty in St. Tam­many Parish, Louisiana as a “crit­i­cal habi­tat” for the embat­tled amphib­ian.

But here’s the kick­er: The frog hasn’t been seen on the land in ques­tion for over 50 years.

The fed­er­al gov­ern­ment has the abil­i­ty through the Endan­gered Species Act (ESA) to des­ig­nate land as “crit­i­cal habi­tat” sub­ject­ing it to addi­tion­al reg­u­la­tions. But the gov­ern­ment can’t sim­ply claim that pri­vate prop­er­ty is “crit­i­cal habi­tat” with­out first con­duct­ing an eco­nom­ic analy­sis to deter­mine the eco­nom­ic impact. If the analy­sis shows that the cost of cre­at­ing a crit­i­cal habi­tat bur­dens the prop­er­ty own­er and out­weighs the per­ceived ben­e­fit to the endan­gered species, the land can be exempt­ed from the reg­u­la­tion.

In the case of the St. Tam­many prop­er­ty, the eco­nom­ic analy­sis pro­duced by the USFWS revealed that the “des­ig­na­tion could pre­clude all devel­op­ment on the land, caus­ing the landown­ers to lose as much as $36 mil­lion.” Mean­while, the land is not active­ly ben­e­fit­ting a sin­gle dusky gopher frog. But the plans to make the land a crit­i­cal habi­tat pro­ceed. This is a fed­er­al land grab at its worst. And, unfor­tu­nate­ly, the courts are com­plic­it.

Oral argu­ments were heard in a U.S. dis­trict court last week regard­ing the sit­u­a­tion. U.S. Depart­ment of Jus­tice attor­ney Mary Hollingsworth not­ed that the prop­er­ty in dis­pute is a good prospec­tive breed­ing ground for the frog and is “in very good shape and could be used today if the frogs were there.”

But, as not­ed ear­li­er, the intrigu­ing thing is that the frogs aren’t there – and they haven’t been seen there or any­where in Louisiana for 50 years. More­over, call­ing the land suit­able for the frog is debat­able at best. Pacif­ic Legal Foun­da­tion lawyer M. Reed Hop­per not­ed that “this land does not include the phys­i­cal and bio­log­i­cal fea­tures that are crit­i­cal for the dusky gopher frog, so it’s no sur­prise that there aren’t any frogs on the prop­er­ty.” The gov­ern­ment wants to effec­tive­ly restrict use of pri­vate land that could cost the landown­ers mil­lions to pro­tect a crea­ture that doesn’t live, and pos­si­bly could not even sur­vive, there.

Unfor­tu­nate­ly, the court’s deci­sion allows this inani­ty to pro­ceed. Pacif­ic Legal Foun­da­tion report­ed that a fed­er­al judge “reluc­tant­ly” upheld the des­ig­na­tion of this unsuit­able area as “crit­i­cal habi­tat.” The judge acknowl­edged the ESA appears to go too far but sug­gest­ed that is a mat­ter for Con­gress to address and not the courts.” The Foun­da­tion called the action by the USFWS to not fol­low its own rules an “irra­tional deci­sion.”

An “irra­tional deci­sion” is a good way to put it. More­over, it’s out­ra­geous that the gov­ern­ment could restrict devel­op­ment of pri­vate prop­er­ty and cost a fam­i­ly $36 mil­lion dol­lars, not to men­tion the cost in jobs and eco­nom­ic activ­i­ty of not pro­duc­tive­ly using the land. And the deep­er issue of exces­sive gov­ern­ment inter­ven­tion shouldn’t be for­got­ten. M. Reed Hop­per says it well:

Essen­tial­ly this is sort of a test case for the Fish & Wildlife Ser­vice. This is the first time they’ve ever extend­ed their author­i­ty this far, and if they get away with it here, they’re like­ly to do it in the future.”

Though the frog may be lit­tle, through the Endan­gered Species Act, this amphib­ian is trash­ing pri­vate prop­er­ty rights that should be pro­tect­ed under the Con­sti­tu­tion, poten­tial­ly cost­ing peo­ple mil­lions, and set­ting a dan­ger­ous prece­dent for the future.