Invisible Frog Collides With Property Rights

November 6, 2017 01:18 PM
Edward Poitevent

Edward Poitevent is at the mercy of an invisible frog. He has lost private property rights on 1,500 acres to a frog species that will never live on his land and doesn’t live in his state.

Can the federal government push aside private property rights in the name of critical habitat for a species that doesn’t live on a given piece of land, can’t live on the land with the present environmental conditions, and doesn’t live in the state in question? Yes, according to Poitevent’s case. The feds don’t have to pay a dime for the land, yet Poitevent can never freely develop or sell his own land.

In September 2011, the U.S. Fish and Wildlife Service (FWS) published a proposed critical habitat rule for the dusky gopher frog with a bull’s-eye on 1,500 acres of Poitevent’s tree farm land (which is currently leased by Weyerhaeuser, a timber company) in St. Tammany Parish, located toward the tip of the Louisiana boot. Kicking hard against the designation and a massive $34-million loss, Poitevent hopes the U.S. Supreme Court will hear his case this fall.

When FWS personnel declared Poitevent’s land a potential critical habitat choice for the dusky gopher frog, Poitevent felt supported by what he believed was sound reasoning: The dusky gopher frog didn’t exist on his land. No matter. More than 80 miles to the east in Mississippi, the last 100 dusky gopher frogs on the planet were still hiding on the edge of extinction, the remnant of a population that once spread across multiple southern states. (Note: FWS officials were contacted, but declined comment related to dusky gopher frog litigation.)

The dusky gopher frog hasn’t been seen in Louisiana since 1967, according to the Department of Interior. However, historical records confirm the presence of the dusky gopher frog on Poitevent’s land prior to the 1960s. The reclusive 3" dusky gopher frog was designated as endangered by Mississippi in 1993 and by FWS in 2001. In 2007, the Center for Biological Diversity (CBD) sued FWS to force designation of critical habitat: Find the frog a home.

The initial critical habitat was promulgated in 2010 and proposed land located exclusively in Mississippi. However, Joseph Pechmann, a biology professor at New Orleans University (now at Western Carolina University), informed FWS of his past dusky gopher frog research on Weyerhaeuser-related land. Pechmann believes the dusky gopher frog existed on the property when the Poitevent family bought the land after the Civil War and says the frog could be found on the acreage until at least 1965.

“I doubt the Poitevent family or the other timber companies had any idea they were hurting frogs. But I think it’s important to keep this in mind: The Poitevents were not idle bystanders in the disappearance of the dusky gopher frog from their land and that’s important to remember when you are weighing habitat for an endangered frog against private landowner rights,” Pechmann says.

Receiving partial blame for the demise of the dusky gopher frog doesn’t sit well with Poitevent: “The FWS, CBD and Professor Pechmann can preach and point fingers about morals all day long, but I thought our first moral duty was to people. They need to look themselves in the mirror and get their priorities straight. We intend to use this land for the benefit of the people of St. Tammany Parish, not some non-existent creature that can’t live there and won’t ever be there,” he says.

Collette Adkins, senior attorney at CBD, says the dusky gopher frog can coexist with private landowners. “We’ve already seen coexistence in Mississippi, and it could happen in Louisiana if Mr. Poitevent had a different set of values where he could recognize the moral duty to protect endangered species. He has values where private property trumps everything else.”

Adkins says critical habitat designations don’t automatically mean restrictions of private land use. “He can continue to use the land for timber with no impediments. The only reason critical habitat would bring any change is if he needed any sort of permit in the future. Even then, it would be extremely rare for FWS to determine no development is allowed.”

FWS officials have consistently claimed critical habitat designation on private land doesn’t stop development or hinder business. Poitevent says the claims are ludicrous: “Who wants to buy land and try to build on critical habitat ground dealing with EPA, Corps of Engineers, wetlands permits, endangered species and much more?”

Poitevent took his fight to court, and although U.S. District Judge Martin Feldman upheld the critical habitat designation, the text of Feldman’s ruling was blunt: “The court has little doubt what the government has done is remarkably intrusive and has all the hallmarks of governmental insensitivity to private property.”

The Pacific Legal Foundation (PLF) is representing Poitevent in the fight over critical habitat designation. “FWS acted beyond the statute,” says Mark Miller, a senior attorney with PLF. “Yes, they can control land where the frog lives, but the frog doesn’t live on Poitevent’s land. They can’t lock down land on behalf of a frog that doesn’t even live there. There’s not a single one of these frogs in the entire state of Louisiana.”

Yet, Pechmann says PLF has taken on the litigation as part of an ideological battle where property rights trump endangered species. “PLF is bankrolling this,” he says. “Private property rights shouldn’t rule over the survival of an endangered species. Mr. Poitevent’s family owns 45,000 acres and only 3.5% is in critical habitat; it’s not like this is a huge amount of the family livelihood. It’s hard to see this as a burden on Mr. Poitevent. If the land is worth as much as he says, he wouldn’t be leasing to Weyerhaeuser and it would be in development.”

Adkins believes SCOTUS will decline Poitevent’s case. “Every lower court has upheld this critical habitat designation,” she says. “This case is solely about Mr. Poitevent’s property and has no nationwide significance.”

However, at least 18 states believe the Poitevent case carries nationwide significance, evidenced by a phalanx of amicus support. In addition, U.S. Circuit Judge Edith Jones, in dissent of the Fifth Circuit’s panel decision, wrote: “The ramifications of this decision for national land use regulation and for judicial review of agency action cannot be underestimated.”

The Poitevent case shows private property rights can be sidestepped in favor of regionally extinct species with the backing of the court. A dusky gopher frog croak last heard in Louisiana 50 years ago is still heard by the federal government today.

“Lincoln in his Gettysburg Address said we have a ‘government of the people, by the people and for the people.’ This frog case was of, by and for a runaway bureaucracy committed to self-preservation,” Poitevent says. “The government and Professor Pechmann trespassed on our land, trampled our constitutional rights and made my family’s land worthless. To add insult to injury, they won’t pay us for it. This has been a nightmare, but it’s our land—not the FWS’s, the CBD’s or Professor Pechmann’s—and I’m not rolling over for anyone.”

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