NEW ORLEANS (AP) — A Libertarian organization is asking the U.S. Supreme Court to overturn a declaration that Louisiana timberland is critical habitat for an endangered frog found only in Mississippi.
The nonprofit Pacific Legal Foundation wants the high court to overturn lower court rulings that have upheld the U.S. Fish and Wildlife Service. The agency says a network of ponds so shallow they dry up in the summer makes the 1,500-acre (607-hectare) tract the only potential breeding ground outside Mississippi for dusky gopher frogs .
The declaration is an "unprecedented abuse of the Endangered Species Act," since the frogs haven't lived in Louisiana since 1965, foundation attorney Reed Hopper, who represents landowner Markle Interests LLC, said in a news release.
"Regulators are seeking to impose control over privately owned property in the name of a phantom frog — a frog that is nowhere to be found on the property or, indeed, anywhere in the state. Moreover, the property is not suitable for frog habitat," and the owners will not make it suitable, Hopper said.
Designating land as critical habitat requires consultation with the agency before federal permits or contracts are issued but doesn't give the government any power to make landowners do anything to protect the frog.
"I wish the landowners would stop their wasteful and pointless challenges to the frog's protections and instead cooperate with habitat restoration and frog reintroduction," Collette Adkins, senior attorney with the Center for Biological Diversity , said in an email.
No appeals court has ever ruled that the federal agency violated the Constitution when implementing the Endangered Species Act, she wrote.
The critical habitat declaration was upheld in district court and 2-1 in the 5th U.S. Circuit Court of Appeals, which voted 8-6 against having the full court re-hear the case.
The 3½-inch-long (9-centimeter) frogs cover their eyes with their forefeet when picked up, and have bumps on their backs which secrete a bitter fluid.
They once lived in Louisiana, Mississippi and Alabama. Now an estimated 135 live in the wild and about 550 are in zoos, according to the most recent recovery plan for the frogs.
The frogs live underground, in stump holes and burrows dug by other animals, emerging mainly to breed and lay their eggs in "ephemeral ponds." Because they dry up in summer, those ponds don't hold fish that might otherwise eat the eggs.