Judge Drops Frog Habitat Protections

A federal judge in Washington, D.C., has eliminated protection of nearly 4 million acres of habitat in 28 California counties for the imperiled red-legged frog, the athletic amphibian immortalized in Mark Twain’s story “The Celebrated Jumping Frog of Calaveras County.”

The frog, the largest in the Western United States, has been on the endangered species list since 1996, its plummeting population attributed to the steady loss of wetlands throughout much of the state.

U.S. District Judge Richard Leon issued his ruling after the Bush administration proposed a settlement with industry groups, asserting that the frogs would not be irreparably harmed.

The ruling paves the way for developers to bulldoze, grade and otherwise alter land considered vital to the species’ survival. Developers still must obtain special permits, however, before taking any action that could kill individual frogs. Most of the affected land is in the San Francisco Bay Area and is privately owned.

About 200,000 acres of public land in the Angeles National Forest and portions of national forests in the Sierra Nevada will remain protected.

The ruling is the latest in a series of recent rollbacks of habitat protection for dozens of threatened and endangered species, delighting developers and infuriating environmental groups.

“We’re very pleased,” said Richard Campos, general counsel for the Home Builders Assns. of Northern California, which along with the California Chambers of Commerce and the Alliance for Jobs, sued the U.S. Interior Department to nullify the habitat designation.

“It’s a serious blow to the protection of the California red-legged frog and aquatic and wetland areas throughout California,” said Peter Galvin, of the Center for Biological Diversity, which has sued the government successfully dozens of times to have critical habitat designated for imperiled species, including the red-legged frog.

“An important layer of protection has been removed,” Galvin said. “This is part of a trend of industry groups suing to undo environmental protections, and the Bush administration falling all over themselves to reach sweetheart settlement deals.”

In this case, as in several others, the administration agreed with developers that the federal government failed to adequately assess the economic impacts of restricting development on large areas of land.

Under federal law, the costs to industry and the public of designating critical habitat for an endangered species must be considered, and if they outweigh the benefit to the species, then habitat need not be designated.

A report prepared by two UC Berkeley economists for the home-builders group concluded that economic losses because of construction delays or cancellation caused by the frog habitat would average $100 million a year, or $2 billion over 20 years. U.S. Fish and Wildlife consultants had estimated far lower annual figures of $5 million a year.

As part of the settlement of the frog case, Leon ordered the Fish and Wildlife Service, a division of the Interior Department, to redo its economic impact analyses by 2004 and decide by 2005 whether the costs outweigh the benefits of protecting the frogs’ habitat.

The judge in his ruling cited arguments by the Fish and Wildlife Service that no serious harm would come to the frogs during the study period.

Critical habitat, one of the most contested parts of the Endangered Species Act, requires mapping out what land is necessary for the species’ survival. Proposed projects on private lands designated as critical habitat can be halted if they involve the use of federal funds for roads, or have other federal connections.

In the last year, various industry groups have successfully sued to overturn critical habitat protections for dozens of fish, bird and insect species, in California and other Western states.

Many but not all judges have been following the lead of the 10th Circuit Court of Appeals, which ruled in May 2001 that the process used to designate critical habitat did not adequately analyze economic impacts on property owners and others who make a living from the land.

Judges have vacated critical habitat for 19 salmon species, the cactus ferruginous pygmy owl, the Southwestern willow flycatcher, the arroyo Southwestern toad, and the San Diego fairy shrimp.

In two cases, courts have ordered economic analyses to be redone but kept critical habitat designations in place. Pending cases in which industry groups are seeking to invalidate critical habitat involve the Western snowy plover, the Northern spotted owl, the marbled murrelet, the Alameda whip snake, the Arkansas River shiner and the loach minnow.

Fish and Wildlife spokesman Mitch Snow dismissed environmentalists’ charges that the Bush administration was orchestrating the successful challenges to critical habitat. “How can you have a sweetheart deal when it’s a judge ruling, not the Bush administration? There are three branches of government, there is a separation of powers here.”

Snow said federal officials are “caught between a rock and hard place,” between competing lawsuits by environmentalists and developers over critical habitat. At the same time, Snow said, his agency hasn’t received enough funds from Congress to adequately analyze habitat needs or economic impacts.

Over the last several years, fish and wildlife officials have lost dozens of lengthy, costly lawsuits brought by environmentalists to have critical habitat designated, only to have industry groups turn around and sue them to have the designations undone.

Snow said it was no surprise that the economic analysis argument was holding up in court.

“It’s almost predictable if you don’t have enough time and money to do this right, and courts are saying, ‘Well, do it anyway.’ Well, surprise, people are going to sue.”