Imagine you own some land.
It's belonged to your family for 150 years.
It's potentially worth over $30 million.
You've got big plans for it.
Well, at least you did,
until you get a call
from the U.S. Fish and Wildlife Service.
You see, sir, your land used to be a habitat
for the dusky gopher frog.
Now, nobody's seen the frog in your state
in over 50 years, that's true.
But it could hypothetically be a habitat
for the little fella.
All you'd have to do is rip up every tree
across 1,500 acres of your property,
replace all of it with a very specific tree
that doesn't grow there anymore,
ensure that there are ephemeral ponds
that dry up seasonally,
ensure that those ponds don't have any fish
that'll feed on the frogs' eggs,
do controlled burns a few times a year,
and presto, it's habitable.
Of course, by this standard,
here's a mock-up of a potential habitat
for the dusky gopher frog.
(crickets chirping)
If this sounds ridiculous,
that's because it is.
But this is what happened to Ed Poitevent in 2012.
His family has owned a tract of land in Louisiana
for over 150 years.
He sees it as a family heirloom of sorts,
something to pass on to his children.
The land could be worth over $30 million, if developed.
Because of the critical habitat designation,
the Poitevents can't do much with the land
without triggering a complicated
and burdensome consultation process
with U.S. Fish and Wildlife Services.
They can't do anything that would require a federal permit,
which, in Ed's case, could apply to just shoveling dirt.
Almost anything that's done on this land is likely
to require a Clean Water Act permit.
Just moving dirt around in an area
that the Army Corps decides
to call a water United States can trigger federal liability
and a federal permit.
And that's the hook.
Conservation work is so challenging
because the dusky gopher frog needs
a very specific landscape to thrive.
Ephemeral ponds, open canopy forests,
and periodic fires to rejuvenate the grasses.
And even then, it's unclear that they would thrive.
And here's why:
this is the nature conservancy
in Old Fort Bayou, Mississippi,
100 miles east of Ed's property.
They've been working to recover the frog's population,
no small task, given its highly specific conditions.
The conservancy took some tadpoles
from the existing frog population
to raise them in filtrated aerated aquariums
with a steady diet of algae wafers,
which, trust me on this,
should not be confused with that healthy Trader Joe's snack.
At their Old Fort Bayou pond,
they've released nearly 3,800 tadpoles,
and 5,500 metamorphs,
which sounds like a Gundam Wing character,
but is actually a technical term for frog.
The results thus far:
fewer than 50 frogs have survived
at their specially designed,
exhaustively nurtured site.
Now, this is not uncommon result
when you're transplanting a species.
Even the most ideal circumstances,
the frog's ability to thrive is challenging,
uncertain, and very, very labor-intensive.
What's someone like Ed Poitevent supposed to do?
In a case like this, you're options are:
A: comply with owner's rules,
and run your very own conservation effort,
overseen by a federal agency
that would quite honestly prefer to take all your land,
B: give up, and leave the land as is,
or C: fight back, and sue.
Ed opted for C.
Pacific Legal Foundation is representing him
on the case, free of charge.
It's taken six years of litigation and fighting,
but it's finally before the Supreme Court.
But the case isn't just about Ed's land,
or a frog that doesn't live there.
If a federal agency can do this to the Poitevents' land,
which, remember, the frog does not, and cannot live,
it can designate any piece of land,
just about anywhere, as critical habitat.
It's a tough case because we care
about protecting endangered species
like the dusky gopher frog.
Biodiversity is important.
But this heavy-handed route does nothing for the frog,
and it severely punishes ordinary citizens.
So what's a better way of protecting the frog?
Tate Wadkins, research fellow
at the Property Environment Research Center,
has some thoughts.
- [Tate] The bottom line is that endangered species
like the dusky gopher frog don't benefit
when the law makes enemies out of landowners.
Channeling those resources to on-the-ground recovery efforts
like the nature conservancies,
would actually benefit at-risk species.
But a more collaborative approach
to dealing with property owners in the first place,
might make them more receptive
to partnering with groups like the nature conservancy.
And in the long run,
that could make a real difference for conservation.
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