After 8 Years of Dusky Gopher Frog Drama, Court Settlement Provides Relief for Louisiana Landowner

Edward Poitevent stands on his family property in St. Tammany Parish, Louisiana. Photo courtesy of Pacific Legal Foundation.

Last week, a long-running saga over private land designated as critical habitat for an endangered frog came to a close with an agreement reached in the U.S. District Court for the Eastern District of Louisiana. A consent decree between the Fish and Wildlife Service and landowner Edward Poitevent will remove the land in question from a critical habitat designation made by the agency, a sensible resolution that serves to bolster private property rights.

Mark Miller, a senior attorney for the Pacific Legal Foundation and lead counsel for the family landowners, said of the agreement: “This federal frog feud is over, and property rights and good government win. The government tried to ban development of 1,500 acres of private property at a cost of $34 million in the name of an endangered frog that does not live on the property and cannot survive there. The feds may as well have labeled this Louisiana property critical habitat for a polar bear. It would have done just as much good.”

As I detailed in a 2018 PERC Reports feature, in 2011, the U.S. Fish and Wildlife Service designated 1,500 acres of Poitevent’s family property in St. Tammany Parish, Louisiana, as critical habitat for the dusky gopher frog, an endangered species that has not been documented in the state for half a century. The agency designated the area despite the fact that significant changes would be required for the land to be able to support the frog. By the federal government’s own estimate, the designation could have cost Poitevent and his family up to $34 million in lost development value.

The dispute over the designation went all the way to the Supreme Court, where PLF represented Poitevent last October. In November, the Supreme Court issued a narrow but unanimous decision that sent the case back to a lower court, ordering it to wrestle with the question of what qualified as “habitat,” a ruling effectively in favor of the property owners. “The justices all agreed,” PLF said of the decision at the time, “that federal regulators overstepped their authority when they declared 1,500 acres of private land in Louisiana as a critical habitat for a frog that can’t survive there.” The consent decree issued last week represents the “final victory for Edward Poitevent and property rights,” as PLF put it.

“It’s gratifying after more than eight years to finally close the book on this relentless crusade against private property owners across the U.S.,” said Poitevent. “Once I was told that my family’s land had been declared a habitat for a frog that disappeared from the land more than 50 years ago, I knew that justice would ultimately prevail.

“With [the] consent decree, my family’s 1,500 acres can be now used to benefit the surrounding community, and other private property owners can be assured that something similar won’t happen to them.”

While Poitevent now knows the fate of his family’s property, the fate of the dusky gopher frog remains murkier. As I also documented in PERC Reports, the Nature Conservancy has been working on one of its properties in southern Mississippi for more than a decade to rehabilitate the imperiled frog. Yet recovering the species is uphill battle, as I noted just ahead of the Supreme Court case last fall:

To date, the Nature Conservancy has released nearly 10,000 tadpoles and frogs at its pond in Old Fort Bayou, yet its biologists estimate the adult population at only 50 dusky gopher frogs. Even when everyone is pulling in the same direction, recovering endangered species is a slog. If more landowners were viewed as potential collaborators in conservation, perhaps we could improve our record at helping the most vulnerable species.

The court settlement between Poitevent and the federal government bolsters private property rights, but the episode serves as a useful reminder: When the Endangered Species Act pits rare species against the very people who own habitat—or potential habitat—that could help in their recovery, no one wins.

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