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Jumping Frog Backlash

Much of California is up for grabs as industry and environmentalists battle over territory that could be protected for species under the Endangered Species Act. The struggle took several new turns recently, when U.S. Fish & Wildlife rescinded the designation of 4.1 million acres stretching from Yosemite to the Los Angeles suburbs that had been considered essential to the survival of the red-legged frog. The Calaveras jumping frog (also known as the California red-legged frog) is down to about 10% of the population that existed back in the days when Mark Twain first made it famous.

Judge Richard Leon, who had been appointed to the federal bench only weeks before by the Bush administration, accepted a settlement between the Home Builders Association of Northern California and Fish & Wildlife, but later reinstated habitat protections after environmentalists protested that he hadn’t heard their arguments.

Several weeks before, Anthony W. Ishii, of the U.S. District Court in Fresno, had ordered Fish & Wildlife to keep in place a similar designation of 400,000 acres of East Bay grasslands deemed critical to the survival of the Alameda whipsnake.

This is only the latest legal whipsawing over the provision in the Endangered Species Act that requires federal agencies to draw a line around areas considered essential to the recovery of a threatened or endangered species (see Habitat Setback, April 2002 ESTUARY). This widely misunderstood section of the law requires only that agencies must consider whether development could harm the species. The law virtually never stops development outright, but may alter the way it is done. Unlike listing of species, which must be based solely on scientific considerations, critical habitat designation requires officials to take economic impacts into account. The economic analyses conducted by the agencies over the last 10 years are now falling apart under pressure from industry lawsuits. In the past few months, agencies have rescinded critical habitat designation for 19 West Coast salmon and steelhead species and for one of the rarest bird species in the United States, the cactus ferruginous pygmy owl, which lives in the rapidly suburbanizing valleys of Arizona. A recent industry suit challenging critical habitat designation for the snowy plover along 210 miles of coastline in California, Oregon and Washington promises more of the same.

Peter Galvin of the Center for Biological Diversity, which has taken a lead role in forcing the federal government to designate critical habitat, charges that the agencies are taking a dive under orders from the Bush administration, which received hefty campaign contributions from real estate developers and other industries.

"We feel confident that the critical habitat rules will come back," says Galvin. "There’s nothing in these rules that lets Fish & Wildlife off the hook. The fear is how much more habitat will be lost while they go back to do better economic analysis and what that will do [to the ability of these species to recover."

Eric Glitzenstein, an environmental attorney in Washington, D.C., says he believes there is a long-term strategy by the Bush administration to come up with the narrowest possible critical habitat designations and leave the remaining land open to development.

If the red-legged frog, whipsnake and plover lawsuits reveal anything, they show a landscape that is still very much unsettled. While there is hope for environmentalists in the courts, agencies are at least temporarily ceding territory in many of the areas where the pressure to develop is fiercest.

"We’re in this jump-ball period," says Don Barry of the Wilderness Society, a Washington, D.C.-based environmental group. Barry worked for more than 20 years on endangered species policy at the U.S. Department of the Interior and was one of those who spoke against pushing the issue of critical habitat. Now he says he’s not sure which course would have been the most effective.

"Where it’s going to go isn’t clear," says Barry. "But it will fall one way or another. The karma is set." SZ

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