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Edward Poitevent made a claim on the Tucker Carlson show that the government wants to take his land in Louisiana without paying, cut down all trees and burn it in the name of protecting an extinct frog.

They claim [the frog] was there because they want us to give over the land so they can cut every tree on 1500 acres and turn it into a frog resort. They would absolutely have to maintain it every year, keep the land burned every year [...] the frog is extinct.

Further in the interview, Mr Poitevent makes the following statement:

What I said was you're not going to take my land unless you pay me for it and they won't pay me for it. They have certified through their own economists that the loss of value to us is $34 million and they refuse to pay for it because it's not a taking legally.

Then the following exchange:

TC: These are environmentalists in the name of environmentalism telling you they want to cut all your trees down and set fire to your land that's environmentalism.

EP: That's correct, that's absolutely correct

He is taking his case to the Supreme Court.

Is it true that the government wants to:

  1. Take Mr Poitevent's land without paying him for it
  2. Cut down all trees, and then burn the land periodically
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ventsyv
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    I think you need to provide better documentation. But (much as I generally distrust Fox and Hannity) [this link](http://insider.foxnews.com/2013/08/06/louisiana-man-suing-over-endangered-frog-not-seen-50-years) doesn't indicate that the government is "taking" Poitevent's land. – Daniel R Hicks Nov 14 '17 at 02:44
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    @DanielRHicks: Done. Linked to Carlson, not Hannity. Beware poisoning-the-well fallacies. – Oddthinking Nov 14 '17 at 03:57
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    The claim at the link in the comment isn't about "not paying for the land" but about being deprived a potential income from development. – user5341 Nov 14 '17 at 04:50
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    Actually Mr Poitevent that the government wants them to "give over the land" and that he responded "you're not going to take my land unless you pay me for it". He didn't say that there were restrictions on development. – ventsyv Nov 14 '17 at 16:37
  • @ventsyv What Mr. Poitevent said and what actually happened seem to be two very different things according to the documents in the answers. – David K Feb 06 '18 at 03:07
  • @ventsyv the Supreme Court unanimously agreed with the land owner. I added a link to the court's decision to my answer. – DavePhD Feb 05 '19 at 15:17

2 Answers2

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The frog is not globally extinct. However, it is extinct from Louisiana. It does not live on the property in question, or in the state where the property is located. See Mississippi gopher frog could hop into St. Tammany.

As far as burning, a fifth circuit court of appeals decision in the matter states:

Approximately ninety percent of the property is currently covered with closed-canopy loblolly pine plantations. These trees would have to be removed or burned and then replaced with another tree variety to allow the establishment of the habitat that the Service has concluded is necessary for the breeding and sustaining of a dusky gopher frog population.

For more information, see Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Dusky Gopher Frog (Previously Mississippi Gopher Frog) Federal Register / Vol. 77, No. 113 / Tuesday, June 12, 2012 :

This rule designates critical habitat for the dusky gopher frog.

Approximately 625 hectares (1,544 acres) are designated as critical habitat in St. Tammany Parish, Louisiana.

...

Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographic area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

...

Unit 1 encompasses 625 ha (1,544 ac) on private lands managed for industrial forestry in St. Tammany Parish, Louisiana. This unit is located north and south of State Hwy. 36, approximately 3.1 km (1.9 mi) west of State Hwy. 41 and the town of Hickory, Louisiana. Unit 1 is not within the geographic area occupied by the species at the time of listing. It is currently unoccupied; however, the last observation of a dusky gopher frog in Louisiana was in 1965 in one of the ponds within this unit.

The land, according to court decisions thus far, has not been "taken" (within the meaning of the 5th amendment to the US constitution). The land has been designated as critical habitat for an animal species. The government "wants to" [meaning hopes that the owner will voluntarily consent to] burn the land to create good conditions (open canopy rather than closed canopy forest) for the species.

However, though the government is not trying to absolutely force the burning upon the land owner, as explained in Economic Analysis of Critical Habitat Designation for the Dusky Gopher Frog (a study commissioned by the government), the government can stop the owner from developing the land, by denying a section 404 permit, on the basis that the land is critical habit for the frog, which would cause $34 million dollars in lost value. The economic analysis report also says that if the land owner "works with" the government "to establish conservation areas for the gopher frog within the unit, resulting in 40 percent of the Unit being developed and 60 percent managed for gopher frog conservation and recovery", then there would only be a $20 million dollar loss.

Overall, the government is attempting to economically pressure, but not absolutely force, the owner to burn or otherwise remove trees to reestablish habitat suitable for a frog that currently lives only in the neighboring state.

For more information see this Supreme Court Petition for a Writ of Certiorari.

The Supreme Court has now (1/22/2018) decided to hear this case.

Update:

The Supreme Court unanimously reversed the lower court's decision, for two independent reasons:

Firstly, the Supreme Court held:

Only the “habitat” of the endangered species is eligible for designation as critical habitat.

and secondly the lower court did not adequately consider whether the decision to designate the land as critical habitat, despite economic consequences, was:

arbitrary, capricious, or an abuse of discretion

DavePhD
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    Your first and second link seem to contradict each other. The first one says: "The federal government has not offered to pay Poitevent in exchange for the designation. But officials at Fish and Wildlife said the designation will have no effect on Poitevent's plan to develop the land. And, they said any further action, such as creating and maintaining the habitat, and moving the frogs there, would be voluntary on Poitevent's part and come at no expense to him.", but your second quote seems to imply that this is not voluntary. – tim Nov 14 '17 at 17:10
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    It actually seems that both sources agree that any changes would be voluntary though. From the decision: "Following designation, the Fish and Wildlife Service cannot force private landowners to introduce endangered species onto their land or to make modifications to their land." The quote you are using seems misleading. Or am I missing something here? – tim Nov 14 '17 at 17:12
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    @tim the designation of the land as critical habitat affects the way the owner can use the land: https://fas.org/sgp/crs/misc/RL31796.pdf – DavePhD Nov 14 '17 at 17:21
  • @tim The second quote about the burning is just about what the government "wants to" do, which is how OP phrases the question. It doesn't mean there is involuntary burning. The designation of critical habitat does not authorize forced burning. The government is designating it as critical habitat with the hope of doing the burning. – DavePhD Nov 14 '17 at 17:38
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    So as I understand it, all of the claims are false? The government doesn't demand that they get the land, the government isn't going to - and is not allowed to - cut every tree nor burn the land every year, and the frog isn't extinct. If this is the case, you might want to make that clearer in your answer instead of focusing so much on the exact phrasing. When someone says "The government wants to do X" they don't mean "They think doing X is a good idea, but are not planning on doing X", especially considering that he is suing them over this. – tim Nov 14 '17 at 17:46
  • @tim if you read the court decision, a major issue is whether or not the critical habitat can be designated based merely on a "hope" that the land owner will allow action that creates such a habitat. So the "burning" claim is only true in the way the Service and court are using the word "hope". It is not true that the government is attempting burn the land by force. – DavePhD Nov 14 '17 at 17:57
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    @DavePhD I have to agree with Tim. A clear definition of "wants to" is pretty critical to understand what is going on in this question. – BobTheAverage Nov 14 '17 at 20:28
  • @BobTheAverage Yes, I agree. The government designated the land as critical habitat on the basis that it hopes to burn the land with the owner's consent to create conditions suitable for the frog to be reintroduced there. Such habitat conditions can not be created unless the owner consents to the burning. – DavePhD Nov 14 '17 at 20:49
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    @tim - "Following designation, the Fish and Wildlife Service cannot force private landowners ... to make modifications to their land." But if he wanted to pave it over and build condos, does it *allow* the landowner to make those changes? Sometimes that's what designations do - limit what the landowner can do. (Rhetorical question, I don't expect you to know that, just offering another possible perspective). – PoloHoleSet Nov 14 '17 at 21:49
  • @PoloHoleSet I have no idea, but you are probably correct. I would expect that the designation does have some effect on what the owner can do. But that really isn't the claim, which is about *forcing* the owner to do something or *taking* away the land altogether. .@DavePhD: I think your comment properly summarizes the issue. You should make that clearer in your answer as well. As-is, it suggests otherwise. – tim Nov 14 '17 at 22:04
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    Confusing. So on the cutting down and burning the land, is that true? It seems Fish and Wildlife would like to replace one type of tree with another, not just clear the trees and "keep the land burned" ? – ventsyv Nov 14 '17 at 22:40
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    @ventsyv Correct. Ideally they would harvest the trees (i.e., clear cut), but depending upon the soil conditions and the species of tree, burning may be a better option. Some soil doesn't react well to be compacted by heavy equipment. – rjzii Nov 15 '17 at 03:35
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    @ventsyv The FWS states "There is considerable uncertainty surrounding the frequency of future burns that may be requested by the Service and whether these burns would lead to any economic impacts; therefore incremental impacts associated with burns are not quantified in the DEA" – DavePhD Nov 15 '17 at 12:58
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In addition to not yet having taken the land, the government doesn't want to take the land, and the government knows and accepts that it cannot take the land, make changes to the land, or demand from someone else to make changes to the land using the process of designation of critical habitat (which is what this issue is about).

As the court document that DavePhD found states:

Following designation, the Fish and Wildlife Service cannot force private landowners to introduce endangered species onto their land or to make modifications to their land

The service is also aware that they cannot take the land or make changes to the land:

Service candidly recognized in the Final Rule that it could not undertake any efforts to change the current features of the land or to move frogs onto the land without the permission and cooperation of the owners of the land.

"want to" in this case means "hope that other people will, but will not enforce or demand changes". The hope is important for the designation as critical habitat, but it is just that: hope.

Specifically, the current economic activity on the land will not be impacted by the designation:

The proposed designation of critical habitat for the dusky gopher frog would not result in physical occupation or invasion of private property. On non- Federal lands, activities that lack Federal involvement, such as timber management and oil and gas extraction, would not be affected by the critical habitat designation.

However, future changes in the economic activity that involve the federal government may be regulated:

However, a second scenario concerns activities of an economic nature that are likely to occur on non-Federal lands in the area encompassed by this designation, and where Federal involvement may occur, and includes construction of utilities, residential or commercial development, and road construction and maintenance. This second scenario is where a regulation may potentially deny all economically beneficial or productive use of land, commonly referred to as a categorical taking. However, the mere promulgation of a regulation designating critical habitat does not on its face deny property owners all economically viable use of their land. The Act does not automatically restrict all uses of lands that have been designated as critical habitat, but only imposes restrictions under section 7(a)(2) on Federal agency actions that may result in destruction or adverse modification of critical habitat.

Specifically:

The designation of critical habitat does not impose a legally binding duty on private parties. Activities that do not involve a Federal agency, Federal action, Federal funding, or Federal permitting, will be unaffected by the designation of critical habitat. Private land use activities, such as farming and silviculture, would be unaffected. Federal activities, or actions permitted, licensed, or funded by Federal agencies, will require consultation with the Service if they are likely to adversely modify critical habitat.

The consultation may result in the demand of "reasonable and prudent alternatives", which must be economically feasible. Again, this is only the case if the federal government is involved in the development, otherwise no consultation is required.

tim
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    This answer doesn't stand well on its own. There is clearly some impact on the owner, or he wouldn't be fighting it. If the modifications are voluntary, what impact does the classification have on the owner? – Oddthinking Nov 15 '17 at 12:17
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    @Oddthinking Does it matter? The claim isn't that there may be some unspecified impact, but that the government will force the owner to make specific changes, or take the land away altogether, neither of which are true. But yes, the answer is meant to complement DavePhds answer, which I think contains valuable information, but which is also misleading as-is, as it doesn't contain the parts from the sources that make it clear that the claim is false. – tim Nov 15 '17 at 12:51
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    @Oddthinking The economic impact has been analyzed based upon 3 different scenarios and two discount rates. It could be zero impact if the area is not considered "wetlands" up to about $35 million if the entire area is considered wetlands. See this report https://www.regulations.gov/document?D=FWS-R4-ES-2010-0024-0157 . The impact occurs if/when a federal permit is required to develop the land, in which case it can be refused based upon the critical habitat designation. – DavePhD Nov 15 '17 at 12:51
  • @Oddthinking also, the Fish and Wildlife Service has published in the Federal Register "There is considerable uncertainty surrounding the frequency of future burns that may be requested by the Service and whether these burns would lead to any economic impacts; therefore incremental impacts associated with burns are not quantified in the DEA" – DavePhD Nov 15 '17 at 12:59
  • @tim The government certainly can take the land. Eminent domain is part of the constitution https://en.wikipedia.org/wiki/Eminent_domain_in_the_United_States#Constitutional_powers_and_limits Everyone agrees that the government can take the land if they want to. They just don't want to because then they would have to pay for it. – DavePhD Nov 15 '17 at 13:17
  • @tim: My complaint is more stylistic than factual. I read your answer and concluded that the designation would not have any real impact on the owner. The owner just had to say "Thanks for the designation, but no thanks to any of your offers that affect me in any way." That doesn't seem to be likely to be true, so it is probably missing some context. If the government isn't taking, burning or chopping, what are they doing? – Oddthinking Nov 15 '17 at 13:23
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    @tim The statement in the federal register "If activities undertaken in Unit 1 have a Federal nexus (as assumed in scenarios 2 and 3 in the DEA), the Service may request burning through the section 7 consultation" implies that (in these 2 scenarios) the government has leverage through the triggering of section 7 (which can stop all development). – DavePhD Nov 15 '17 at 13:31
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    @Oddthinking I added a bit more information about that. .@DavePhD: OK, they can take the land, but not via the process in question. The important part is that they don't want to take the land. I added info about the part with federal involvement. – tim Nov 15 '17 at 13:50
  • @tim the stopping of development occurs if a section 404 permit is required for the development (scenarios 2 and 3). https://www.epa.gov/cwa-404/section-404-permit-program Then the critical habitat designation can be used to deny the permit and prevent the development. – DavePhD Nov 15 '17 at 13:58
  • @tim "Scenario 2 assumes that a compromise with the landowners will be reached" (quoting from the economic analysis). So basically the owner may be forced to choose between only a $20 million loss under scenario 2 (if they cooperate) and a $34 million dollar loss if they don't do what the FWS wants. So they are not absolutely forced to accept the burning, but are economically forced in this manner. – DavePhD Nov 15 '17 at 14:31
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    @Oddthinking You seem to be assuming that Poitevent's objections are entirely rational and are not politically motivated. – DJClayworth Nov 15 '17 at 17:14
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    @DJClayworth What's irrational here? It seems the government's objective (via the Fish and Wildlife Service) is to use the land as a frog habitat. The designation process is a first step in a process that _might_ eventually let it do that without having to take an actual ownership interest in the land, depending on the scenarios described in the links. There is real, non-political risk here for the owner, where land that currently brings in significant income might become effectively worthless. The poor phrasing for the claim renders it false, but there is certainly _something_ going on. – Joel Coehoorn Feb 06 '18 at 15:13
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    @DJClayworth Now Tucker Carlson's motive for putting this on the air... _that's_ political. – Joel Coehoorn Feb 06 '18 at 15:19
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    @tim the Supreme Court unanimously ruled in favor of the land owner (against the federal agency). – DavePhD Feb 05 '19 at 15:24