After three straight days of "Man Versus Frog" stories I hesitate to add another, except to set the law straight.
The Endangered Species Act is not dumb. It makes ample provision for private property rights, and goes out its way to avoid a fight. Even if an action (like clearcutting a timber farm), will jeopardize a species (like the Mississippi Gopher Frog), Congress provides a way out through habitat plans (candidate conservation plans, no surprises, safe harbors) that accommodate survival needs while allowing the project forward. Some years ago I examined some 102 initial jeopardy calls and found 98 of them resolved through such plans, many of them quite modest indeed. (Two other proposals were flat stupid, e.g. dredging canals across a barrier island, and the third simply disappeared.)
Many public and private forests here in the southeast are managed under plans that include significant timbering while protecting the red-cockaded woodpecker, the gopher tortoise and other longleaf pine species. Many private landowners here seek out these species to shelter as mitigation banks for other development. And, these landowners will tell you, because they also think it is the right thing to do. Given the fact that most species lived here for millions of years before we came on the scene, you might agree as well. Congress certainly did. Even the little species. Penicillin came from a fungus, the Pacific Yew may cure ovarian cancer, and we’ve only begun to learn.
In today’s world we reconcile private property interests with public ones every day of the week. Master plans, zoning, lot sizes, building heights, noise ordinances, tree ordinances, historic buildings, each part of the give and take of living together. These are all compromises, and so are the endangered species plans. If the very idea of protecting a frog sends a particular landowner up the wall then there is no way to make him happy, or encourage him to give an inch. He wants it all. But the Act is not stupid, there is a way out, he simply has to seek it. We do not have a Man v. Frog story here. We have a fight that never had to happen.
Oliver A Houck
law professor, Tulane University
We might as well call the dusky gopher frog the dusky goner frog. It continues to spawn liti…