Bench trial in endangered frog habitat suit _lowres

Advocate file photo

Louisiana's answer to the snail darter is the dusky gopher frog; in fact, when it comes to highly obscure and endangered critters that get in the way, we've got Tennessee beat.

The snail darter actually lives in Tennessee, where it threatened to prevent completion of the Tellico dam 40 years ago. The ducky gopher frog died out in Louisiana more than 50 years ago, and will probably never be seen here again, but it could stand in the way of major development in St. Tammany Parish.

If you ever picked up a dusky gopher frog, experts say it would cover its eyes and play dead, although I cannot vouch for the truth of that proposition. I have never seen one, and neither, in all probability, have you. The frogs spend most of their lives underground in open-canopied pine forests, emerging only to breed in “ephemeral” ponds, which dry up seasonally and are thus unable to sustain predatory fish.

The dusk gopher frog population is down to 100, restricted to three ponds in Mississippi. It used to live in Louisiana, where five suitably ephemeral ponds still exist. However, the trees that grow on the Louisiana tract these days are loblolly pines, which produce a closed canopy. The dusky gopher frog needs the open canopy created by longleaf pines. The Louisiana tract also no longer boasts the “abundant herbaceous ground cover” which herpetologists tell us the dusky gopher frog requires.

One out of three ain't bad, the U.S. Fish and Wildlife Service decided, and designated the Louisiana tract as “critical habitat,” meaning it is “essential” for dusky gopher frog conservation.

The landowners harvest the loblolly pines for timber and also have plans for residential and commercial development, which the critical-habitat designation would likely stymie. They therefore challenged it in court, only for U.S. Judge Marty Feldman to rule that the Wildlife Service, having determined the terrain around the Louisiana ephemeral ponds was “restorable,” was within its rights.

Now, a three-judge federal appeals court panel in New Orleans has not only upheld Feldman, by a vote of 2-1, but has gone out of its way to remark what a well reasoned opinion he wrote.

Alas, this legal exegesis, however spot-on it may be, may not improve the dusky gopher frog's chances of survival. The government cannot order landowners to put out the welcome mat for endangered species.

However, the landowners here, who were doubtless unaware of the dusky gopher frog's existence, would need federal permits if their development plans, as they well might, affected wetlands.

The Wildlife Service estimates that if the owners, in return for the permits, were required to cede 60 percent of their land to the dusky gopher frog, they would lose $20.4 million worth of development. If no construction were allowed, the cost would be $33.9 million. There would then appear to be no incentive for the landowners to spend plenty money swapping out the pine trees and otherwise creating and maintaining the requisite environment.

The financial implications were more serious with the snail darter, which was discovered in the Little Tennessee River when the Tellico Dam was close to completion and had already cost more than $100 million. The U.S. Supreme Court ruled that dam construction should stop, but Congress passed an amendment to the Endangered Species Act that allowed it to continue.

The snail darter was transferred to other Tennessee waterways, and now appears to be thriving.

A similar happy ending cannot be predicted for the dusky gopher frog, if a suitable Louisiana habitat is indeed “essential” to its survival. The ecosystems of yore cannot be restored overnight, even with landowners willing to make any required financial sacrifices, and there are so few dusky gopher frogs left that time must be running out.

So in the end it may not make much difference that the appeals court ruling will encourage the widespread suspicion that conservation is largely for the birds.