In 1978, the U.S. Supreme Court halted construction of the massive Tellico Dam on the Tennessee River, and all to preserve that obscure, diminutive and endangered member of the finny tribe, the snail darter.
The court did not feel obliged to question whether this was a proportionate response, or to apply any cost/benefit standard. “The plain intent of Congress in enacting” the Endangered Species Act, the court ruled, “was to halt and reverse the trend toward species extinction, whatever the cost.”
It all ended happily, however, with the dam completed and the snail darter flourishing sufficiently to be reclassified as merely “threatened.”
This came about when Congress exempted the dam from the law, and the fish were netted and released into waterways where they wouldn't be disturbed. But the court's dictum that biodiversity trumped all obliged U.S. Judge Martin Feldman in 2014 to block development on 1,500 acres of St. Tammany Parish land for the sake of a frog that has not been seen there since 1965 and probably never will appear there again.
Its return seems all the more unlikely now. The landowners had lost on appeal, and the U.S. Supreme Court has decided to accept the case of the dusky gopher frog. The court grants writs so rarely that a decision to grant writs indicates scope for debate of a significant issue and possible reversal. August sages do not bother with slam dunks.
The mood in Washington has changed a great deal since 1978, and, in the age of President Donald Trump, environmentalists do not rule the roost. This Supreme Court may well infer a different aim in the Endangered Species Act. As with all its decisions, everything may depend on whether Anthony Kennedy woke up feeling conservative or liberal that day.
When the U.S. Fish and Wildlife Service up and designated the St. Tammany Parish land “critical habitat” for the dusky gopher frog, the owners were no doubt flabbergasted. They had never seen one, but then hardly had anyone else. The frogs are pretty picky about where they live, breeding only in shallow ponds that dry up periodically and thus contain no predatory fish. They spend most of their time in burrows, often dug by the gopher tortoise, deep in the longleaf pine forests that have largely given way to urban sprawl.
Disease and habitat loss has pretty much wiped out the frog, so that only about 200 adults are left, and they are restricted to three ponds in Mississippi. They are, the Nature Conservancy tells us, stubby and dark-colored, with warts on their backs and emit a sound that resembles a snore.
Just as new homes were found for the snail darter, conservationists in Mississippi are working to broaden the range of the dusky gopher frog. But even if the Supreme Court rules against the landowners in St. Tammany Parish, they can put up a “No Tadpoles” sign and there is nothing the U.S. Fish and Wildlife Service can do about it.
There wouldn't be much point anyway, for the St. Tammany ecology in its current form could not support the dusky gopher frog. The St. Tammany pine trees are these days loblolly, and the dusky gopher frog insists on longleaf. It cannot survive without the herbaceous ground cover no longer to be found here.
Fish and Wildlife was able to give it the distinctly uncoveted “critical habitat” title because it does boast a few of the ponds that are suitably “ephemeral” for dusky gopher frog reproduction. But the designation does not oblige the owners to welcome the frog back to its ancestral haunts, far less to spend millions restoring the land to the pristine condition the frog requires. The owners would rather make millions from residential and commercial development in what is the boomingest corner of the state.
If the Supreme Court agrees that Fish and Wildlife exceeded its authority in St. Tammany, the frog may lose whatever slim chance of survival it possesses.
It may be, as framers of the Endangered Species Act evidently took for granted, that the earth is diminished by the extinction of any species, however humble or rarely seen. But mankind has borne the disappearance of countless species with equanimity, and only a few stray herpetologists would miss this one.