Court Settlement with Developers Undermines Protection for California Red-Legged Frog

Statement by Earthjustice attorney, Michael Sherwood


Brian Smith, Earthjustice: (510) 550-6714


Robert Stack, Jumping Frog Research Institute: (209) 728-2353


Peter Galvin, Center for Biological Diversity: (510) 841-0812

While most folks were headed off to Independence Day celebrations, Judge Richard Leon (a recent Bush administration appointee) on the U.S. District Court in Washington, D.C., approved an agreement between the Home Builders Association of Northern California and the U.S. Fish and Wildlife Service to nullify most of the 4. 1 million acres in California it had designated last year as critical habitat for the threatened California red-legged frog. The developers had argued that the Service had not correctly considered the economic impacts of protecting habitat for the frog.

Made famous by Mark Twain’s story “The Celebrated Jumping Frog of Calaveras County,” the red-legged frog has disappeared from 70 percent of its original range in California. Under the settlement, the wildlife agency agreed to redraw the boundaries by November 2005. The only areas retaining habitat designation are in protected national forests, lands of no economic value to the building industry.

Earthjustice had represented the Jumping Frog Institute, Pacific Rivers Council, and the Center for Biological Diversity in the years-long litigation to gain protection for the frog.

Earthjustice attorney Mike Sherwood made the following statement regarding the current plight of this literary frog.

“This settlement is really bad news for the frog. And Americans should be concerned that this represents an underhanded effort by the Bush administration to dismantle essential components of the Endangered Species Act.

When Fish and Wildlife issued the original critical habitat designation, it cited the loss and alteration of the frog’s habitat as the primary reason for its decline. There is intense development pressure on the frog’s remaining habitat. We should ask ourselves, will we leave any space for native species in California, or will we pave it all over for more sprawl development?”

This settlement fits the pattern of stealth Bush administration environmental protection rollbacks. The strategy is simple: let industry file challenges and then have the Justice Department make only a weak defense of the law. The environmental community, which had successfully won protection for the frog, was cut out of the process entirely. Although the environmental groups represented by Sherwood had intervened in the Home Builders’ lawsuit in defense of the critical habitat designation, the Home Builders and federal government pointedly excluded them from the settlement negotiations. However, there was an agreement, approved by the court, that when a settlement was proposed, the environmental groups would have two weeks to file objections to the settlement with the court, before the court acted on the proposed settlement.

On Friday, June 28, the Home Builders and federal government filed a proposed settlement that would undo most critical habitat for the frog. While preparing the environmental groups’ objections to the proposed settlement, Sherwood was shocked to learn that the court had jumped the gun and had approved the settlement on July 2, 2002, only two days after it had been submitted, and before the environmental groups had an opportunity to file their objections.

“Either the court made a mistake or the Endangered Species Act was cynically undermined,” said Sherwood. “We certainly hope this was a mistake, and that we will still get our day in court.”

On Friday, July 5, 2002, Sherwood filed a motion with the court asking it to set aside its approval of the settlement, and to allow the environmental groups to file their objections to it. The groups will argue: 1) that the critical habitat designation, though not perfect, should be upheld by the court; 2) if the court does decide to remand it to the Fish and Wildlife Service for reconsideration, the existing critical habitat rule should remain in place during the remand to protect the frog; and 3) that the amount of time the Service has requested (over three years, to November 2005) in which to promulgate a new critical habitat designation, is grossly excessive.

The red-legged frog is just the latest imperiled species to lose habitat protections in the past year due to industry objections including 19 species of West Coast salmon and steelhead and two vanishing bird species — the pygmy owl and the southwestern willow flycatcher.

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