The Case Of The Mysterious Phantom Dusky Frog

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…Should The Dusky Gopher Frog Be Reintroduced?

Dusky Gopher Frog 1The Dusky Gopher Frog or Mississippi Gopher Frog, was once abundant along the Gulf Coastal Plain in lower Louisiana, Mississippi, and Alabama—from east of the Mississippi River Delta to Mobile Bay.  However, it has not been seen in Alabama since 1922 or in Louisiana since 1967. Presently, only two known populations exist; with about 100 frogs to be found in Glen’s Pond, Harrison County, Mississippi. The other population is less dense and spread out through the surrounding wetlands, recently found to concentrate around Mike’s Pond, Jackson County, Mississippi. Currently, the range of Rana sevosa is decreasing at a dramatic rate due to urban sprawl, deforestation, and even fire suppression that destroys the possibility of sunlight reaching down to the wetlands, critical for the growth of the frogs’ immediate habitat. Currently, the two known populations of Rana sevosa are separated by only 32 km.

Louisiana Land Owner Mr. Poitevent Calls The FWS

Louisiana Frog Pond
Louisiana Frog Pond

A federal biologist on the other end of the line told Edward B. Poitevent II that the U.S. Fish & Wildlife Service intended to designate a large swath of Louisiana woods that had been in his family for generations a “critical habitat” for the endangered dusky gopher frog.

Poitevent was confused because the frog had been neither seen nor its croak heard on the land since the 1960s. Later he would learn that his land is not, in fact, a suitable habitat for the frog anyway.

“No matter how you slice it or dice it, it’s a taking of my land in that I can’t use it or sell it now,” said Poitevent, a New Orleans lawyer.

A half century after disappearing from the 1,500-acre parcel in Louisiana, the dusky gopher frog will likely appear this month in filings urging the U.S. Supreme Court to settle the matter after years of costly litigation.

In one sense, the case illustrates the conflicts that arise as conservationists and the government uses the Endangered Species Act to protect privately held lands. But legal scholars say the absent amphibian could provide a broader test of just how far the government’s regulatory reach can extend under the Constitution.

The dusky gopher frog, a largely subterranean critter, is on a long list of species whose endangered designations restrict private land use. Currently, development rights are being challenged to protect the habitats of at least four other creatures: the Riverside fairy shrimp (California); the Northern spotted owl (Oregon, Washington and California); the Gunnison sage grouse (Colorado and Utah); and the jaguar (Arizona and New Mexico).

Louisiana Case Surrounds The Frog’s Long Absence From The Land In Question

Dusky Gopher Frog Facts
Dusky Gopher Frog Facts

What seems highly impractical is the reintroduction of the dusky gopher frog on the Louisiana tract. The dark, warty creature has very particular needs. It can only breed in ephemeral, or temporary, ponds, so no pesky fish can eat its tadpoles. It lives much of its life burrowed underground beneath a longleaf pine canopy. At the moment, about 100 of the creatures are believed to inhabit a small area in and around the DeSoto National Forest in Mississippi, some 80 miles due east of the Poitevent family’s land in St. Tammany Parish, near the Mississippi-Louisiana border.

Ephemeral ponds do form on the Louisiana tract, but the canopy of loblolly pines isn’t conducive to their survival. Additionally, the lack of regular fires creates underbrush the frog dislikes. In other words, the land could become a suitable habitat only if the landowners spent heavily to transform the foliage and re-introduced the frog – steps the government concedes it cannot compel.

The Center for Biological Diversity – The Muscle Behind The Project

CBD LogoSo how did the Louisiana tract become entangled with the dusky gopher frog in the first place? Poitevent believes, and the record seems to support, that the case wouldn’t exist but for the prodding of the Center for Biological Diversity, a national environmental advocacy group. The frog was added to the endangered list in 2002 as a result of a lawsuit filed by the center against federal agencies, and it was another center lawsuit that first secured “critical habitat beyond the frog’s main home pond” in 2007. But the center felt those steps were insufficient for the frog’s survival and threatened yet another lawsuit in 2010. Poitevent’s land appears to have been a sacrificial pawn in this maneuvering, and the fateful call to him from the federal biologist came soon after.

Collette Adkins, a senior attorney with the advocacy group, said the frog’s needs trump a landowner’s rights. The fact that its former Louisiana home became uninhabitable because of natural rather than manmade changes does not mean people bear no responsibility for keeping the critter alive, she said. Taking a larger and longer view, she argues that human activity in that region over the centuries has reduced the frog’s habitat. “We are the ones who drove them to extinction,” she said.

Weyerhaeuser LogoAt present, the lumber company Weyerhaeuser owns 5 percent of the land in question and has a timber management contract on the remainder with Poitevent and some of his relatives. But the land’s potential value lies in much more than timber. The wildlife service’s own economic impact study estimated the value at some $33 million – if development were unrestricted. But because the wildlife service decided there was no other potentially suitable gopher frog habitat besides his land, no buyer will touch it, Poitevent said.

Gopher Frog Proposed Range
Gopher Frog Proposed Range

At least one outside environmentalist thinks a more compromising approach in such conflicts could satisfy the ambitions of landowners and the needs of endangered animals. “This isn’t about biological diversity; this is about land management,” said Reed Watson, executive director of the Property and Environment Research Center in Montana.

The wildlife service disputes the notion it is “taking” any land. The owners aren’t losing their title, regulators insist, just facing limits on what they can do with it. In comments made five years ago that the service says still reflect its position, an assistant regional director for ecological services said regulators would be happy to work with the Poitevent’s and other land owners.

“We don’t want to take his land,” assistant director Leopoldo Miranda said in a wildlife service video in 2012. “It’s his land to manage. This designation does not stop future development or land use.

“In fact, the service regularly works with landowners around the country to accommodate development while finding creative ways to save the wildlife that our citizens demand we protect.”

“This is a land grab by radical environmentalists,” Poitevent said.

The Response by the Fish and Wildlife Service

The following are Excerpts from Fox & Friends

This critical habitat designation could cost Mr. Poitevent over $30 million….

“This designation does not stop future development or land uses.  This figure comes from an economic analysis the Service is required to conduct for these kinds of actions and in this case the range is from $0 to $30 million over 30 years.  If planned development does not require federal funding or permitting, the cost of this designation will be zero.  If federal funds or permitting are needed, we expect that future real estate development can be accommodated across a significant portion of the land designated.”

My Land Could Be Taken Out Of Commerce And Not Be Allowed To Develop It

“This designation does not take lands out of business.  The property in question has been used for timber production and hunting for decades.  In fact, those 1,544 acres are part of the land currently being leased to Weyerhauser through 2043.  We are working with willing landowners in Mississippi to conserve this extraordinarily rare frog and look forward to working with willing landowners in Louisiana.  The Service has a number of voluntary, partner-based programs that make funding available to do this work and there are other partners as well doing this kind of work.  We’ve recently provided Mr. Poitevent contact information to learn more about conservation banking in Louisiana, for example.”

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Don McDowell, Arizona native, is an avid outdoorsman and has been an active bass pro fisherman for over 16 years and in the past 15 years has developed his own radio show promoting bass fishing and conservation efforts for bass fishing that escalated to nominations with several bass groups and organizations. In the past 12 years, Don has pursued his conservation agenda through AZBFN-TBF as Conservation Director and with the Arizona Game and Fish Department, in the spring of 2014 redesigned his website to include those efforts highlighted below and has increased the AZGFD exposure, public education of the AZGFD and Commission issues on his radio show and website soliciting local and national support for Arizona. 2014 has seen the founding of SRT Outdoors, Inc., 501 C3 organization, “Not for Profit, for Conservation” which is concentrating on grants for mitigating the effects of Gizzard Shad on Roosevelt lake thorough habitat enhancement, Florida Strain Bass stocking, lakes bottom mapping, etc. and feral hog research.

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