Merriam-Webster defines habitat as “the place or environment where a plant or animal naturally or normally lives and grows.”
But what if a place is no longer an environment that is hospitable to a particular animal?
Such is the case of the dusky gopher frog, an endangered species that recently was the center of a federal lawsuit that threatened the development of more than 1,500 acres in Southeast Louisiana.
In November, the U.S. Supreme Court unanimously ruled in favor of landowners in Louisiana who challenged the designation of pine forests in St. Tammany Parish as critical habitat for the frog protected under the Endangered Species Act.
The high court ruling describes the dusky gopher frog as being “about three inches long, with a large head, plump body, and short legs. Warts dot its back, and dark spots cover its entire body. It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Less endearingly, it also secretes a bitter, milky substance to deter would-be diners.”
The U.S. Fish & Wildlife Service (USFWS) designated the frog as endangered in 2001 but did not designate critical habitat for it at the time. About 100 of the frogs were found in a single ephemeral pond in southern Mississippi, its only known wild population at the time. Years later, more wild populations were discovered in Mississippi.
The Center for Biological Diversity subsequently sued and in 2010 forced the USFWS to propose critical habitat. Because the locations were in two adjacent counties in Mississippi, the 1,544 acres in St. Tammany Parish were included as “unoccupied critical habitat,” a place it said was the last known population of the frog outside of Mississippi.
Weyerhaeuser, which owns much of the land and leases the rest from the Poitevent family, fought the designation of critical habitat. The amphibian no longer lives in Louisiana and hasn’t in more than a half-century.
The lower court erred when it didn’t consider the land to be habitat for the dusky gopher frog rather than critical habitat, said Paul Stone, chairman of the Endangered Species Committee for the Louisiana Forestry Association. The opinion written by Chief Justice John G. Roberts Jr. said that must happen before it can be determined as critical to the species.
“The frog needs an open canopy,” Stone said, which is found in longleaf pine forests.
The forests in Louisiana pegged as critical habitat have long been managed as loblolly pines, which consists of a closed canopy that doesn’t allow for the frog’s survival.
“(The court) needs to consider that since it wasn’t in the open condition it should not have been considered as frog habitat,” Stone said.
Weyerhaeuser argued in federal court that changing the environment to one in which the frog could survive would require extensive work at great cost after the area had changed for many decades. Also, USFWS “had failed to adequately weigh the benefits of designated Unit 1 (how the land was identified in the lawsuit) against economic impact.”
Although the 5th U.S. Circuit Court of Appeals rejected that argument, the high court vacated the lower court’s ruling but remanded a couple of decisions.
“The question will be, should the habitat be merely adequate or how close to optimal habitat does a site need to be before it can be designated ‘critical’ for the recovery of a threatened or endangered species,” Stone said. “That will be the gist of the argument before the 5th Circuit Court of Appeals.”
The other part remanded to the appellate court was to consider the economic impact to property owners if the land would be greatly modified so that the species could live.
Stone said that, based on the ruling, designating private lands as critical habitat should not be based only on the historical range or location of a species. An additional requirement should be that the habitat has to be suitable for the species could live now.
“I think it’s a good ruling because it puts the endangered species process back closer to the conditions on the ground,” Stone said. “The conditions on the ground now are very important to the recovery process.”
Stone also said the ruling could affect the process that is ongoing for the Louisiana pinesnake, recently added to the Endangered Species List. It should allow the landowner to continue to manage the land as it is currently being managed. And so long as it is managed in that way, the land should not be designated critical habitat.
Since the case has been returned to the appellate court, it is uncertain how soon a new ruling could be made.
The Supreme Court ruling the dusky gopher frog was 8-0. Justice Brett Kavanaugh had not been sworn in before the case was argued to the land’s highest court.