The dark gopher frog doesn’t get very tall – only about three inches long, on average. But despite its small size, this tiny frog has had a huge effect on the debate over property rights, economic freedom, and government accountability. A frog habitat dispute illustrates why it is important to stand up to overly aggressive regulators.
The dusky gopher frog was once abundant in the southeastern coastal region of the United States, stretching through Louisiana, Mississippi, and Alabama. Sadly, for the last century or so, the species has seen hard times and was declared âendangeredâ in 2001. Today, only two identified populations remain, totaling around 100 frogs, all in Mississippi. .
This is why Edward Poitevent, a native of Louisiana with deep family roots in the state, was surprised when officials from the US Fish and Wildlife Service (FWS) informed him in 2011 that his family’s lands in the parish of St. Tammany, Louisiana were designated “critical habitat” for the Dusky Waffle Frog under the Endangered Species Act. If you own property, two words you hope you’ll never hear are âcritical habitat,â because that means your land is about to come under federal watch.
In Poitevent’s case, the critical habitat designation affected a 1,554-acre parcel of land that his family has owned since the end of the Civil War. This designation, which would limit the family’s ability to use the land now and in the future, would represent a loss of up to $ 34 million in economic value.
And here’s the kicker: There is no evidence that a Dark Waffle Frog has ever been seen on the Poitevent property. In fact, the species hadn’t lived in the state of Louisiana for over five decades, and it couldn’t even survive in the designated area. It was as if the regulators had simply decided to requisition the land in case any frogs did decide to settle there, even if it required an arduous 70-mile jump from the Mississippi.
Poitevent, a lawyer, knew his constitutional rights, and he was certain that his family’s property rights were violated by an arbitrary and illegal taking of land by the government. So he recruited Pacific Legal Foundation to help build the case to fight against the regulatory scope of the FWS.
After years of legal wrangling, the The United States Supreme Court has ruled unanimously in November 2018 that the FWS overstepped its authority by designating the Poitevent property as critical habitat for a frog that did not even live there. Following the decision, the US Department of the Interior, home to the FWS, proposed changes to its policies for critical habitat designations, proposing to offer additional protections to landowners and incentives for them. private landowners to work with government on preservation.
If these welcome proposals are adopted, then Poitevent will be able to use his land for the good of his family and his community. More importantly, the precedent set by the country’s highest court will ultimately serve to protect other landowners facing equally abusive designations.
The result in the case of Poitevent was a major victory for property rights and economic freedom. The Competitive Enterprise Institute has documented how abusive regulatory judgments like these can limit the rights of landowners to use their land as they see fit, at an extremely high cost. The immense costs start with the red tape required by the bureaucratic processes of the law, which can run into the hundreds of thousands of dollars. Then there are the costs associated with the steps required to remove the designated species from the endangered species list. If you finally get to this point, there are still legal and administrative fees that add up.
In this case, there was a happy ending. But not all landowners are able to stop government bullying. If government agents could do this to the Poitewinds, they could designate any land as critical habitat for virtually any animal. No one’s land would be safe. We must zealously defend the ability of private landowners to use and benefit from their property against abuses by aggressive and irresponsible government agencies. The case of Poitevent illustrates why this defense is important.
The Trump administration has proposed changes to regulations implementing the Endangered Species Act and is accept public comments on the plan until October 8.