The Absent Amphibian That Could Cost Your Company Millions

Since its enactment in 1973, the Endangered Species Act has helped endangered and threatened species recover and prosper. But the U.S. Fish and Wildlife Service (FWS) is now stretching the act to absurd lengths by restricting land use in the name of protecting a species that does not even inhabit the land.

The species in question is the dusky gopher frog. It lives only in Mississippi. In 2001, the FWS listed the species as endangered and declared 1,544 acres of private property 50 miles away in Louisiana as “critical habitat” for the frog—even though the frog does not live there and could not survive there under current conditions. The FWS defended the critical habitat designation on the basis that the frog could hypothetically survive on the Louisiana property if the landowner cuts down all the trees there, plants a different type of tree and then periodically burns the land to promote certain vegetation necessary for the frog’s survival.

A critical habitat designation broadly hampers the productive use of one’s land. Owners of land designated as critical habitat face immediate and significant restrictions on their otherwise lawful use of that land, as well as expensive and time-consuming new procedural requirements on ongoing and future projects, litigation risk and often a significant reduction in the property’s value.

Specifically, when a landowner applies for a federal permit to use or develop the property, a lengthy and expensive government consultation process is triggered. Based on that process, the government may substantially limit the scope of planned development and require burdensome mitigation measures. The FWS’s proposed mitigation measures for the dusky gopher frog on the Louisiana property, for example, would have destroyed $20.4 million of the land’s development value.

The broader consequences of the FWS’s position are frightening to imagine. With more than 1,500 different birds, mammals, amphibians, fish, plants and insects currently listed as either endangered or threatened, any land, infrastructure or factory site could be forced to comply with the onerous restrictions that accompany a critical habitat designation. The costs to individual businesses can easily reach into the millions of dollars. (Read more here.)

To fight this regulatory overreach, the Louisiana landowner sued in federal court to overturn the critical habitat designation. The case is now before the U.S. Supreme Court, where the NAM’s Manufacturers’ Center for Legal Action filed a brief this week in support of the landowner. Our brief argues that the FWS exceeded its statutory authority under the Endangered Species Act and highlights how these actions impose significant harm and business uncertainty on manufacturers and other businesses.

Peter Tolsdorf

Peter Tolsdorf is the vice president of litigation and deputy general counsel at the National Association of Manufacturers.

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