The dusky gopher frog is headed to the Supreme Court.
That's the plan after the U.S. Fifth Circuit Court of Appeals on Monday denied a petition to re-hear a case that pits a group of St. Tammany landowners against the U.S. Fish and Wildlife Service. At the center of dispute: a tiny endangered underground frog once native to Mississippi, Louisiana and Alabama. Now, however, there are fewer than 100 left in the wild, all in Mississippi.
In 2012, the Fish and Wildlife Service designated 6,400 acres, including 1,500 in eastern St. Tammany Parish, as "critical habitat" for the frogs, even though no frogs have lived on the St. Tammany site for more than half a century. The FWS' move meant, in effect, that the landowners would be barred from developing the land, some of which is classified as wetlands, and would thus require a permit from the U.S. Army Corps of Engineers.
The case headed to federal court, and the government scored victories in the Eastern District of Louisiana and by a three-judge panel of the Fifth Circuit. Monday, that victory was affirmed by a 8-6 vote of the Fifth Circuit's judges, who refused to hear the case before the entire bench. The next step in the legal process is to file it with the U.S. Supreme Court.
"Of course we are disappointed and we think it's wrong," said Edward Poitevent, one of the landowners who sued the FWS. "This is a very important issue for not only us but for the country."
It’s been roller-coaster week for Edward Poitevent, a local landowner and developer.
The ruling, which was issued in a single paragraph, is accompanied by an at-times sarcastic dissent written by U.S. Circuit Judge Edith H. Jones and joined by the five judges who voted to hear the case.
"The protagonist in this Endangered Species Act case — the dusky gopher frog — is rumored to 'play dead,' 'cover its eyes,' 'peak (sic) at you[,] and then to pretend to be dead again,'" Jones wrote. "The panel majority regrettably followed the same strategy in judicial review — play dead, cover their eyes, peek, and play dead again."
NEW ORLEANS (AP) — A federal judge is considering the claim that federal wildlife officials …
The central issue in the case is whether the FWS overstepped its authority by declaring the land in St. Tammany Parish critical habitat even though no frogs live there now. The land has a crucial feature of gopher frog habitat: five temporary ponds, each in close proximity, that are key to the frog's reproduction. But in order to re-introduce the frogs to the land, the government would need the permission of the landowner, something they are unlikely to get, considering any development on the land could bring in millions of dollars.
Environmental groups cheered the decision, as they have the ones in the lower courts.
"We’re glad the 5th Circuit upheld the U.S. Fish and Wildlife Service’s designation of habitat for this frog,” said Cynthia Sarthou, executive director of the Gulf Restoration Network, which joined in the suit. “Habitat destruction is pushing the dusky gopher frog to the brink of extinction. Without sufficient habitat, these frogs could be lost forever.”
The plaintiffs have 90 days to file their appeal.