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Dusky gopher frog. Photo by U.S. Fish and Wildlife Service.

Common sense about an uncommon frog

By Leisa Boley Hellwarth, a dairy farmer and attorney near Celina

With all of the talk of the political divide in this country, it is nice to know there is still some common ground. On Nov. 27, 2018, the U.S. Supreme Court ruled unanimously in a case about the dusky gopher frog, Weyerhaeuser Company v. United States Fish and Wildlife Service (2018). The common ground turned out to be 1,544 acres of private land in St. Tammany Parish, Louisiana. Let me explain.

The dusky gopher frog, Rana Sevosa, has dark coloring “dusky” and lives underground “gopher.” Adults are usually 3 inches long with a large head, plump body and short legs (sounds like half of the lawyers roaming the halls of the courthouse). Warts dot its back, and dark spots cover its entire body. The dusky gopher frog is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. It also secretes a bitter, milky substance when attacked.

Dusky gopher frogs once lived throughout coastal Alabama, Louisiana and Mississippi in the longleaf pine forests that used to cover the southeast. By 2001, the known wild population of the dusky gopher frog had dwindled to 100, all at a single pond in southern Mississippi in the De Soto National Forest. The U.S. Fish and Wildlife Service declared it endangered that same year but failed to designate critical habitat for the species.

Only 135 dusky gopher frogs were counted in 2015 so it remains critically endangered. (How do you inventory an amphibian that lives underground?) The demise of the dusky gopher frog is due to habitat loss. This creature needs ephemeral ponds for breeding. According to Wikipedia, ephemeral ponds, also referred to as vernal pools or vernal ponds, are seasonal pools of water that provide habitat for distinctive plants and animals. They are a distinct type of wetlands, usually devoid of fish. This allows the safe development of natal amphibian and inspect species, like the dusky gopher frog.

In 2012, the U.S. Fish and Wildlife Service designated 1,544 acres of private land, located over 50 miles from the pond in Mississippi where the frog resides, as “critical habitat.” Weyerhaeuser, the timber company, owned part of this acreage and leased the remainder for harvesting timber. This private land in Louisiana was last known to have dusky gopher frogs present in 1965, about the same time the Beatles invaded America and just a few years before Neil Armstrong set foot on the moon.

Critical habitat commonly means the specific areas within the geographic area occupied by the species at the time it was listed as endangered, that contain the physical or biological features that are essential to the conservation of endangered and threatened species and that may need special management or protection. This designation is to be excluded if benefits of exclusion outweigh the benefits of the designation.

Weyerhaeuser Company fought the designation of critical habitat being applied to the 1,544 acres of private land through the administrative process then the courts. They asserted that land could not be designated “critical habitat” if it was not “habitat.” Counsel for Weyerhaeuser noted that the Fish and Wildlife Service designated land that had closed canopy forests as critical habitat when open canopy forests are required for the dusky gopher frog to survive. And they argued that the economic implications outweighed the benefit of the determination as the land would be devalued by $33 million over 20 years due to limitations on possible future development. These two issues are the very ones heard by the highest court on Oct. 1, 2018 and decided on Nov. 27, 2018 (unusually speedy).

The lower courts sided with the U.S. Fish and Wildlife Service. The Supreme Court, however, took a different view and remanded the case back to the Court of Appeals for the Fifth District with instructions. The court must review the case in light of how the terms “habitat” and “critical habitat” are defined by the Endangered Species Act and the nature of how much degree of modification needs to be made to make a habitat a critical habitat. Furthermore the cost and benefit analysis is to be given full consideration as part of the determination. The opinion was written by Chief Justice John Roberts, joined by a unanimous court. This was common ground because common sense prevailed.

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