Magazine | October 1, 2018, Issue

Consider the Dusky Gopher Frog

Dusky gopher frog
Protect endangered species by turning them into assets

‘As the one person in Congress, the only one, that voted for the Endangered Species Act, please beat me with a whip,” Representative Don Young said last month. The longtime Alaska congressman was at a legislative forum alongside more than a dozen other House Republicans to unveil a series of bills aimed at reforming the 1973 law. When the act was passed, Young said, representatives were told it was meant to save “leopards,” not “mussels and snails and turtles.”

The House bills are part of a broader Republican-led effort to modernize the Endangered Species Act, which has not been updated in more than a quarter century. In late July, the Trump administration rolled out its own proposed revisions to the regulations that implement the act, eliciting praise from some corners and sparking backlash from many environmental groups.

The reform efforts, and Young’s comments, underscore a peculiar reality of the landmark statute that President Richard Nixon signed 45 years ago: The Endangered Species Act may be at once the nation’s most popular and most controversial environmental law. Polls consistently show overwhelming public support for the act, regardless of political affiliation. People, after all, generally support the idea of saving bald eagles, gray wolves, and other charismatic wild animals. Yet the act — arguably the most powerful environmental law in the U.S. Code — remains a constant source of conflict and controversy between landowners, environmentalists, states, and federal agencies.

The law’s vast regulatory powers can affect land-use decisions across the country, often on behalf of lesser known, less charismatic species, such as the American burying beetle, Preble’s meadow jumping mouse, and Hine’s emerald dragonfly. And because most endangered species rely in part on private lands for habitat, these restrictions can be especially burdensome for private landowners. Along the way, the law can make enemies out of the very people who are most critical to endangered-species recovery.

American burying beetle

Consider the dusky gopher frog, an endangered species at the center of a case before the Supreme Court this fall. The frog’s habitat once extended from Louisiana to Alabama, but its populations have since dwindled to a few small areas in southern Mississippi. Finding one on your property today could result in land-use restrictions, permitting require­ments, consultation with federal agencies, and reduced property values. Or, as one landowner in southeastern Louisiana discovered, merely owning land that has the potential to support the frog can be enough to unleash the act’s regulatory powers — even if the frog hasn’t been seen there in decades.

In 2011 the U.S. Fish and Wildlife Service designated roughly 1,500 acres of Edward Poitevant’s family land in St. Tammany Parish, La., as critical habitat for the dusky gopher frog. The agency did this even though the species had not been documented in the state in more than half a century — and even though the land, which is under a long-term lease for commercial timber production, is currently uninhabitable by the frog.

The frog relies on fire-dependent landscapes with longleaf-pine savannas and seasonal ponds that dry up during the summer — conditions that no longer exist on the property. The Fish and Wildlife Service reasoned that, even though Poitevant’s land represents “poor-quality terrestrial habitat” for the amphibian, it was nonetheless “essential” because it could serve as a possible hedge against the extinction of the frog’s population in Mississippi. Poitevant disputes that.

“Our land is not suitable for the frog,” he recently told PERC Reports, a magazine published by my organization, the Property and Environment Research Center. “The government and Fish and Wildlife Service have said that you don’t have the elements for it. So to make it suitable you’d have to rip up every tree on 1,544 acres, replant all of it with the right tree, make sure the ponds are still there, and make sure you burn it every year. Who is going to pay for that?”

The answer, unfortunately, is that no one will pay for it. The Endangered Species Act, after all, cannot compel landowners to restore habitat. But the government’s critical-habitat designations can come with real costs. In Poitevant’s case, the designation could limit or forbid future development of the property, at a cost of up to $34 million in forgone development value, according to the Fish and Wildlife Service’s estimates. And since Poitevant has neither the inclination nor the resources to undertake such an extensive habitat-restoration project, the frog’s prospects in St. Tammany Parish are grim.

Although the Endangered Species Act grants broad regulatory authority to restrict land uses, it does remarkably little to encourage landowners such as Poitevant to recover endangered species. In fact, it often does the opposite: By imposing regulations on landowners who provide habitat for listed species, the law turns endangered species into liabilities instead of assets. In some cases, this creates perverse incentives for landowners to preemptively destroy imperiled species or their habitat — a process some have called “shoot, shovel, and shut up.”

The evidence for this is strong. A 2003 study by economists Dean Lueck and Jeffrey Michaels found that land­owners in North Carolina accelerated timber harvesting in order to avoid potential regulatory restrictions that could arise if the lands became inhabited by endangered red-cockaded woodpeckers. Other studies have found that landowners near the woodpeckers’ habitat were less likely to invest in reforestation and more likely to clear-cut forests. “The incentives are wrong here,” former Fish and Wildlife Service director Sam Hamilton observed in 1993. “If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears.”

It’s not surprising, then, that the law has such a poor track record when it comes to recovering species under its care. In its 45-year history, only 3 percent of species listed under the act have recovered and come off the list. Senator John Barrasso (R., Wyo.), who is leading reform efforts in the Senate, has decried this fact: “As a doctor, if I admit 100 patients to the hospital and only three recover enough under my treatment to be discharged, I would deserve to lose my medical license,” he has said.

These dismal results have prompted criticism not only from Republicans — Representative Rob Bishop (R., Utah) recently called the Endangered Species Act “the most inept program we have in federal government,” while Repre­sentative Bruce Westerman (R., Ark.) dubbed it “an eight-track law in a Spotify world” — but also from some conservationists, who have conceded that the act is in need of reform to en­courage species recovery. “We have too many cases like it, where a species is listed for years, but the population continues to go straight down the tubes in spite of this allegedly stringent and restrictive law,” Michael Bean of the Environmental Defense Fund has said, referring to the case of the red-cockaded woodpecker.

Some of the proposed reforms could go a long way toward reducing conflict and promoting recovery. In particular, one of the administration’s reforms would restore Congress’s original distinction between “threatened” and “endangered” species, which was meant to encourage recovery efforts. In 1975, however, the Fish and Wildlife Service issued a blanket rule requiring that threatened and endangered species receive the same strict protections. The current proposed change, by reducing the regulatory burdens associated with less vulnerable species, would reward landowners who recover endangered species and encourage collaborative efforts to prevent threatened species from reaching the point where they would need more-restrictive protections.

Another proposal would limit the Fish and Wildlife Service’s ability to designate as critical habitat lands that are not inhabited by a protected species, as in the case of the dusky gopher frog in Louisiana. Under the new proposals, unoccupied areas could be designated only if there is “a reasonable likelihood that the area will contribute to the conservation of the species” — something that clearly is not the case on Poitevant’s land in St. Tammany Parish.

While there is disagreement about the proposed changes, some environmental groups recognize the need for reform. “Although some conservationists might characterize the entire rule-making as simply another Trump-administration effort to undercut conservation,” Jake Li of the Environmental Policy Innova­tion Center told E&E News, “we think that a closer look will reveal both advantages and concerns from a conservation perspective.” Li later concluded: “If conservationists want to maintain their credibility and find practical solutions, they cannot afford to cry wolf over everything.”

Still, many large environmental groups have come out swinging against the proposed reforms. Jamie Rappaport Clark, president and CEO of Defenders of Wildlife, called the House bills an “extinction package of anti-wildlife legislation.” In a fundraising campaign, the group said that the Trump administration’s proposals “essentially take a chainsaw to the Endangered Species Act” and could cause gray wolves to “spiral to the brink” — adding, “Please donate today.”

Now, more than four decades after the Endangered Species Act’s passage, it’s worth asking how we got here. When the act was approved in 1973, it received hardly any organized opposition, and little fanfare. The national media barely covered it. The Senate approved it unanimously; the House vote was an overwhelming 355 to 4. “It sounds strange to say it,” UC-Berkeley law professor Holly Doremus writes, “but the birth of the law may have been too easy.” Few appreciated the law’s potential power and ramifications, especially its ability to regulate private land use. “If legislators had thought more carefully about what they were doing, they might not have passed a law with the same strength and scope,” says Doremus.

In an important respect, however, the Endangered Species Act has succeeded. As its supporters are quick to point out, fewer than 1 percent of the species listed under the act have gone extinct. But preventing extinction is one thing; recovering species is another. Some of the reforms being floated by the administration and Congress could indeed improve the act — which today often seems more about controlling land uses than about recovering species.

If anything, the proposed changes don’t go far enough to encourage landowners to recover species. Many landowners are willing to provide habitat as long as they don’t bear all the costs. Offering compensation to restore habitat, or reimbursing the costs of critical-habitat designations, would provide real incentives for recovery.

In the end, the fundamental challenge is to make species assets instead of liabilities. To truly conserve endangered species, the Endangered Species Act must not only prevent extinction but also provide incentives for landowners to support endangered species of all kinds — including mussels, snails, and turtles. (Sorry, Don Young.)

Shawn Regan is a research fellow at the Property and Environment Research Center, a nonprofit institute in Bozeman, Mont.

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