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The Case of the Phantom Frog

Thursday August 3rd, 2017   •   Posted by Craig Eyermann at 6:07am PDT   •  

Imagine if land that had been held in your family for decades were suddenly subject to new environmental regulations that would severely limit what you could do on that land, where you would not be able to do things like build a new house on it, cut down trees on it, or even to farm it the way your family had for generations.

As you might imagine, the value of your family’s land would plunge, because it would no longer be attractive to people who might consider buying it, because those same restrictions would apply to them.

Now imagine that those new environmental regulations were imposed by the federal government, egged on by environmental activists, that are intended to preserve the natural habitat of an endangered species of frog that had not been seen anywhere on or near your land for nearly half a century. And in a particularly cruel twist, you discover that your family’s land would not even provide a suitable habitat for the endangered species in question unless the government compelled your family to spend thousands of dollars to transform it into a suitable habitat for the endangered frog.

If that sounds like a bizarre nightmare scenario of government bureaucracy, you’re right. RealClearInvestigations James Varney describes a very peculiar case of government regulations run amuck in the name of protecting the dusky gopher frog.

The phone call came out of the blue in 2011.

A federal biologist on the other end of the line told Edward B. Poitevent II that the U.S. Fish & Wildlife Service intended to designate a large swath of Louisiana woods that had been in his family for generations a “critical habitat” for the endangered dusky gopher frog.

Poitevent was confused because the frog had been neither seen nor its croak heard on the land since the 1960s. Later he would learn that his land is not, in fact, a suitable habitat for the frog anyway.

“No matter how you slice it or dice it, it’s a taking of my land in that I can’t use it or sell it now,” said Poitevent, a New Orleans lawyer.

A half century after disappearing from the 1,500-acre parcel in Louisiana, the dusky gopher frog will likely appear this month in filings urging the U.S. Supreme Court to settle the matter after years of costly litigation.

In one sense, the case illustrates the conflicts that arise as conservationists and the government use the Endangered Species Act to protect privately held lands. But legal scholars say the absent amphibian could provide a broader test of just how far the government’s regulatory reach can extend under the Constitution.

The legal case in favor of the homeowner will come down to a court’s determination of what constitutes an “unreasonable” restriction imposed by an ambiguously-worded federal regulation, where common sense has not been allowed to enter the argument as lower level judges have found against the landowners, claiming that their legal hands were tied by a 1982 Supreme Court precedent that awarded a profound amount of legal deference to federal regulators regardless of the specific facts that apply to the case.

With that being the situation, the Case of the Phantom Frog will be an interesting one to follow as it moves through the nation’s appellate courts, particularly if it ultimately reaches the Supreme Court where it could prompt the court to overturn all or part of its previous decision that benefited the interests of federal regulators over those of regular Americans.

On a final note, this kind of environmental-activist directed policy affects far more than a family-owned farm in Louisiana. On July 31, 2017, some 1.8 million acres (2,812 square miles) of farm, ranch and timber lands in the Sierra Nevada mountain range in California had similar restrictions imposed upon them by the U.S. Fish and Wildlife Service, which were defined as “critical habitat” for three species of frogs and toads.

Would the government be so set on imposing such environmental regulations if it were required to fully compensate regular Americans for diminishing the value of their property?

Featured Image:
U.S. Fish and Wildlife Service

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August 2017