Why the Little Dusky Gopher Frog Matters

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dusky gopher frog, an endangered species
Once common along the U.S. Gulf Coast, the endangered dusky gopher frog vanished from Alabama in 1922 and Louisiana in 1965. It now lives in only two Mississippi counties. (Photo: John A. Tupy/U.S. Department of Agriculture)

How the U.S. Fish and Wildlife Service (FWS) protects species around the country will be influenced by how the Supreme Court rules on a singular frog.

The dusky gopher frog (Lithobates sevosus), an endangered species that numbers some 100 individuals, most of which only live around a single pond in Mississippi, is the star of this particular case, launched when the FWS designated private land in Louisiana as a potential critical habitat for the animal.

Landowners said the FWS's use of the Endangered Species Act (ESA) went too far, arguing that the land doesn't work as a habitat for the frog and that certain actions the FWS takes to enforce the act are subject to judicial review, specifically excluding areas from critical habitats on the basis of economic impact.

Finicky frogs

The FWS has worked to save the dusky gopher frog from extinction since 2001, when the service declared the frog an endangered species, according to SCOTUSblog. Nine years after that designation, FWS sought to declare the area a critical frog habitat so the land would benefit from similar protections. Critical habitats are either areas the species currently resides or areas that are unoccupied by the species but are deemed "essential for the conservation of the species" by the FWS.

The dusky gopher frog, despite looking like a hardy prehistoric creature, is quite finicky about its habitat. It only breeds in ephemeral ponds, which, as their name suggests, don't last very long. These ponds fill with water and then dry out not long after. Such ponds are terrible for fish, but they're ideal for the dusky gopher frogs because a lack of fish means the frogs' eggs are more likely to survive. But such ponds are scarce, and creating a man-made version isn't easy.

Pony Ranch Pond in Mississippi
Pony Ranch Pond in Mississippi is one of the ponds used by the dusky gopher frog population. John A. Tupy/U.S. Department of Agriculture/Flickr

Adding to the difficulties, dusky gopher frogs spend their non-breeding time in open-canopy forests, living in burrows created by other animals, hence the gopher moniker. So not only do they need specific ponds for breeding; they need a specific tree cover as well.

Due to this, experts recommended that the FWS seek out other habitats. To that end, the FWS designated a number of areas as critical habitats where the frogs could live and be moved to for their survival. One of the lots, designated Unit 1, is a parcel of 1,544 acres in St. Tammany Parish, Louisiana. Unit 1 contains five ephemeral ponds of "remarkable quality," but the forest canopy is more closed than the frogs may like. The FWS argued that reasonable restoration could be done to make the forest a suitable habitat for the frogs.

An expensive overreach

A small section of Unit 1 is owned by Weyerhaeuser Company, a real estate trust that specializes in timberlands. It leases the rest of Unit 1 from various other corporate owners in the area. Weyerhaeuser and these owners, represented by the Pacific Legal Foundation, sued the FWS, claiming Unit 1 isn't a viable habitat for the frogs, given the work required to the forest canopy. Additionally, Weyerhaeuser and its co-litigants are making a more abstract case about whether or not the FWS's decision to include Unit 1 in the critical habitat designation is subject to judicial review because of the economic impact.

The first point, regarding the issue of suitable habitat for the frog, hinges on the forest canopy. A critical habitat, they argue, must be habitable immediately, or else it simply isn't a habitat in which the frogs could survive. Additionally, Weyerhaeuser and the other landowners say they won't work with FWS or allow the agency to make the habitat suitable for the dusty gopher frogs on its own — meaning the land ultimately wouldn't be habitable for the frogs. The FWS would only be able to move the frogs onto Unit 1 with the permission of the landowners.

The second point regarding economic impact is a more amorphous one. According to SCOTUSblog, the restrictions of a critical habitat only go into effect when a federal action of some kind is triggered; the SCOTUSblog uses the example of wetland permitting. To this end, the FWS created three hypothetical scenarios in which the restrictions would be put in place. The first involved Weyerhaeuser and the others not seeking a federal permit at some point in the future to use the land for purposes other than timber; the second scenario had the landowners seeking a permit for other land use and agreeing to set aside 60 percent of the land for the frogs; the final scenario involved the permit being denied and the federal government denying any development on Unit 1.

The cost for this could range from nothing in the first scenario to about $34 million in property value loss in the third. The benefit of maintaining the frogs' population was not monetized by the FWS, instead saying that the benefits are "best expressed in biological terms."

It comes down to money

Dusky gopher frogs will require new habitats if they're to survive.
Dusky gopher frogs will require new habitats if they're going to survive. Glen Johnson/U.S. Fish and Wildlife Service/Wikimedia Commons

Weyerhaeuser contends that the economic impact of the designation, the potential loss of $34 million, outweighs any biological gain, and, indeed, could still cost money as the state would have to make changes to the area. It has further argued that the potential cost requires a judicial review of the FWS's decision to include Unit 1 in its critical habitat designation.

The FWS, represented by the Center for Biological Diversity and the Gulf Restoration Network, argues against both of these points. The services maintains that a "habitat remains 'habitat' even if it would require human intervention (such as restoration) to become optimal for a species' long-term conservation," and that the ESA's own language, which includes mention of habitation restoration, would "have little meaning" if the FWS had to find already functional habits for species.

As for judicial review, the FWS argues the ESA does not supply a standard by which a judicial review should be activated, especially in regards to deciding to include (or not exclude) a habitat.

"The ESA describes how the service may err in excluding areas from critical habitat, but does not describe how it may err in declining to exclude them," SCOTUSblog writes, summarizing the FWS's position. "The discretionary nature of the service's decision on exclusion – it 'may' exclude areas from designation – indicates that the decision not to exclude is unreviewable."

Species in limbo

The U.S. Supreme Court building Oct. 1, 2018
The fate of the dusky gopher frog may be decided at the U.S. Supreme Court. Mark Wilon/Getty Images

This case had made its way through the judicial system, with both a district court and the U.S. Court of Appeals for the 5th Circuit, albeit with a split panel in the latter decision, siding with the FWS. The district court did not find that the FWS acted arbitrarily in declaring Unit 1 a critical habitat, nor did it find that the decision to exclude a habitat met the standards for a judicial review. Now the case sits in front of the Supreme Court amid the battle over nominee Brett Kavanaugh's confirmation and was among the first cases the court heard on Oct. 1, the opening day of its fall term.

According to the Associated Press, without a ninth judge on the bench, the court seems split on the issue, and with little room for compromise on the case.

Justice Elena Kagan said it seemed Weyerhaeuser was arguing that the Endangered Species Act "would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements in order to support the species."

Justice Samuel Alito disagreed, taking what the AP called a jab at Kagan, saying, "Now this case is going to be spun, we've already heard questions along this line, as a choice between whether the dusky gopher frog is going to become extinct or not. That's not the choice at all," Alito said. He added that the only actual issue before the court is whether private landowners or the government would pay to preserve land that could support an endangered species.

Should the court be split 4-4 in its decision, the justices could decide that the case will be argued again once a ninth judge is confirmed by the Senate.

Should the court find in Weyerhaeuser and its partners' favor, the decision could have significant ramifications for how the FWS implements the ESA, particularly when it comes to helping species recover.

"I would flag that as particularly important in the 21st century," Lewis & Clark Law School professor Dan Rohlf, an endangered species expert, told E&ENews;, "because, No. 1, many species have lost so much habitat and have populations that have shrunk so much that in order to recover those species, we're going to have to protect and restore habitat where those species do not presently exist."