The dusky gopher frog doesn’t grow very large—only to about three inches long, on average. But despite its diminutive size, this little frog has had a massive effect on the debate over property rights, economic liberty, and government accountability. A dispute over the frog’s habitat illustrates why it’s important to stand up to overly aggressive regulators.
The dusky gopher frog was once plentiful in the coastal region of the southeastern United States, stretching across Louisiana, Mississippi, and Alabama. Alas, in the past century or so, the species fell on hard times, and was declared “endangered” in 2001. Today only two identified populations remain, totaling some 100 frogs, all in Mississippi.
Which is why Edward Poitevent, a Louisiana native with deep family roots in the state, was surprised when U.S. Fish and Wildlife Service (FWS) officials informed him in 2011 that his family’s land in Louisiana’s St. Tammany Parish was being designated “critical habitat” for the dusky gopher frog under the Endangered Species Act. If you own property, two words you hope never to hear are “critical habitat,” because it means your land is about to come under federal oversight.
In Poitevent’s case, the critical habitat designation affected a 1,554-acre tract of land his family has owned since the end of the Civil War. That designation, which would limit the family’s ability to make use of the land now and in the future, would constitute a loss of as much as $34 million in economic value
And here’s the kicker: There is no evidence a dusky gopher frog has ever been seen on Poitevent’s property. In fact, the species had not lived in the state of Louisiana for more than five decades, and it could not even survive in the designated area. It was as if the regulators had simply decided to commandeer the land in case any frogs should ever decide to move in, even though doing so would require an arduous 70-mile hop from Mississippi.
Poitevent, an attorney, knew his constitutional rights, and he was certain his family’s property rights were being abused by an arbitrary and illegal government taking of land. So he recruited Pacific Legal Foundation to help him build the case to fight back against the FWS’ regulatory overreach.
After years of legal wrangling, the U.S. Supreme Court unanimously ruled in November 2018 that the FWS had overstepped its authority in designating Poitevent’s property as critical habitat for a frog that didn’t even live there. In the aftermath of that decision, the U.S. Department of the Interior, which houses the FWS, has proposed changes to its policies for critical habitat designations, proposing to offer additional protections to property owners and incentives for private landowners to work together with the government on conservation.
If these welcome proposals are adopted, then Poitevent would be able to use his land for the betterment of his family and community. Even more importantly, the precedent set at the highest court of the land will ultimately serve to protect other property owners facing similarly abusive designations.
The outcome in Poitevent’s case was a major win for property rights and economic liberty. The Competitive Enterprise Institute has documented how abusive regulatory judgments like these can limit property owners’ rights to use their land as they see fit, at a punishingly high cost. The immense costs begin with the paperwork required by the bureaucratic processes in the law, which can run into the hundreds of thousands of dollars. Next, there are the costs associated with the steps necessary to get the designated species removed from the endangered list. If you finally get to this point, there are still legal and administrative costs that pile up.
In this case, there was a happy ending. But not all landowners are in a position to stop government bullying. If government agents could do this to the Poitevents, they could designate any piece of land a critical habitat for practically any animal. No one’s land would be safe. We must zealously defend the ability of private landowners to use and enjoy their property against abuse by aggressive and unaccountable government agencies. Poitevent’s case illustrates why that defense matters.
The Trump administration proposed changes to the regulations implementing the Endangered Species Act and is accepting public comments on the plan until October 8.