Landowner: Frog habitat decision imperils housing plans
By JANET McCONNAUGHEY
Sep. 13, 2018
NEW ORLEANS (AP) — A Louisiana landowner says his plans for a residential development are imperiled by federal designation of 1,500 acres (600 hectares) of his land as critical habitat for a frog currently found only in Mississippi.
The U.S. Supreme Court's opening case Oct. 1 will be Edward Poitevent's (POYT-uh-vent's) challenge to that designation of critical habitat for the dusky gopher frog: a dark, warty animal that puts its forefeet over its eyes when picked up. While it hasn't been seen in Louisiana since the 1960s, the U.S. Fish and Wildlife Service says a network of ponds so shallow they dry up in the summer makes the tract the frogs' only potential breeding ground outside Mississippi.
Poitevent, an attorney, held a news conference on the issue Friday at his law office. Also present were St. Tammany Parish President Pat Brister and attorneys for a conservative legal firm, the Pacific Legal Foundation , and Louisiana's Department of Justice.
Poitevent said the Endangered Species Act "has been called the pit bull of environmental law. And I will tell you that my family has bitten hard by this pit bull," Poitevent continued. "We have shed blood and we are now catching rabies. I hope we don't die."
"A victory for the government in this case will mean anybody's property, anywhere in the United States, for any reason at any time can be taken for something the government says might have been there or might be there one day in the future," said Poitevent.
Designating land as critical habitat requires only consultation with the agency before federal permits or contracts are issued, an attorney for the Justice Department told U.S. District Judge Martin Feldman in 2014. The Justice Department attorney said there have been extremely few cases in which developers have not come up with reasonable ways at a workable cost to protect endangered animals.
Feldman and the 5th U.S. Circuit Court of Appeals both ruled in favor of the Fish and Wildlife Service.
A Mississippi residential development increased the value of land where it built houses by selling adjacent land to an environmental trust as a buffer zone for the dusky gopher frog, said Collette Adkins, senior attorney for the Center for Biological Diversity , an environmental group that has weighed in for the federal government.
Poitevent said he and others with a share or interest in the land "would be willing to consider talking to" the Land Trust, which bought the Mississippi land, or a similar group.
Poitevent estimated that he has put $10 million worth of time and money into the case, not including the Pacific Legal Foundation's donated time. Poitevent said that before learning in 2011 that the land was being considered as critical habitat for the frogs, he was working on his development plans and discussing the matter with Weyerhaueser Corp. The company owns about 6 percent of the land and has a timber lease on the rest until 2043.
Dusky gopher frogs once lived in Louisiana, Mississippi and Alabama, but currently live only in three bits of Mississippi.
"The government never proved to my satisfaction that ... (the temporary ponds)" exist, Poitevent said. Adkins said Fish and Wildlife photographed the ponds, with water in them, in 2012. Areas where such ponds once existed in Alabama are built over or overgrown, she said.
"Our land is completely unsuitable for the frog," Poitevent said.
Adkins said that's not so. Although the best possible habitat for the frogs would require converting it to fire-dependent longleaf pines, she said, frogs coexist with timber companies at some of the Mississippi tracts.
Brister said the need for periodic controlled burns would imperil traffic on a planned highway.
"Underbrush would have to be burned every year," Poitevent said.
Adkins said controlled burns occur across the Southeast, including St. Tammany Parish. "They're not really that big a deal," she said. "An area needs to be burned once every 5 to 10 years. A sign is put up and people drive slowly."
Mark Miller, a Pacific Legal Foundation attorney, said, "Everyone in this case, on all sides of the case, very strongly support what the Endangered Species Act is about. We all want to protect endangered species; we all want to conserve endangered species."