Four million acres, home to the imperiled red-legged frog, are
opened to development.
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 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."
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