Amicus Curiae Brief — Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 45 (2018) (No. 17-71)

No. 17-71

Iu The

Supreme Court of the United States

~¢

v

WEYERHAEUSER COMPANY,

Petitioner,

Vv.

UNITED STATES FISH AND

WILDLIFE SERVICE, et al.,

Respondents.

,’

¥

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

eo

A

BRIEF FOR GOPHER FROG EXPERTS AS AMICI

CURIAE SUPPORTING FEDERAL RESPONDENTS

AND INTERVENOR-RESPONDENTS

@

¥

Lisa W. JORDAN

Counsel of Record

TULANE ENVIRONMENTAL LAW CLINIC

TULANE LAW SCHOOL

6329 Freret Street

New Orleans, LA 70118

(504) 314-2481

lwjordan@tulane.edu

Counsel for Amici Curiae Gopher Frog Experts

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................cccc0000: ii

INTERESTS OF AMICI CURIAE ....................... 1

SUMMARY OF ARGUMENT .......00000 000.000.000.000... 6

a itiainiiiattiicbincinnhitinsntntiriansestnnpicaisntinnieninie 7

I. The Dusky Gopher Frog is Critically En-

IT iidiiasennneondinignianniidemmiasiionaimantignemninn 7

Il. Unit 1 is Essential to the Conservation of

the Dusky Gopher Frog ...........................+. 12

A. The Dusky Gopher Frog’s Breeding

I tintninceniisstentanmiantinenaioes 13

B. Habitat Geographically Remote from

the Existing Gopher Frog Populations

is Essential to the Conservation of the

Se ichninsidhcnisininqudsinucuannenieneninianitennmss 16

C. The Unique Qualities of Unit 1 Make

It Essential for the Conservation of

the Dusky Gopher Frog....................... 20

D. Unit 1 is Essential Despite Its Lack of

Optimal Upland Habitat ..................... 23

SE cinidindinintnbsnnnrtetdcbinccissinenuentninenccoesee 27

‘i

TABLE OF AUTHORITIES

FEDERAL REGISTER

Designation of Critical Habitat for Dusky Go-

pher Frog, 77 Fed. Reg. 35,118 (June 12, 2012)...... 11

Final Rule to List the Mississippi Gopher Frog

Distinct Population Segment of Dusky Go-

pher Frog as Endangered, 66 Fed. Reg. 62,993

I ae I anssccnssccnteseseinuncscenmaniiscsnsenecsnmesent passim

OTHER SOURCES

Jeff Boundy & John L. Carr, Amphibians & Rep-

tiles of Louisiana 138 (La. State Univ. Press

ii eiliinenicdiciccncsaltenisnetiniesssnneinmmansstaahennattinninsitains 11, 13, 26

Cynthia Carey & Michael A. Alexander, Climate

Change and Amphibian Declines: Is There a

Link?, 9 Diversity and Distributions 111 (2003),

https://www.researchgate.net/publication/

230033657_Climate_change and amphibian_

declines_Is_there_a_link ......................0cseeeeeeeeeeeeees 18

Charlene D’Avanzo, Long-Term Evaluation of

Wetland Creation Projects, in 2 Perspectives,

Wetland Creation and Restoration: The Sta-

tus of the Science 75 (John A. Kusler and

Mary E. Kentula eds., USEPA 1989), https://

www.epa.gov/sites/production/files/20 15-08/

documents/wetland_creation_and_restoration_-

_the_status_of the science vol_2 1.pdf................ 21

ste

TABLE OF AUTHORITIES — Continued

Page

John B. Jensen et al., The Relationship Between

Breeding by the Gopher Frog, Rana capito

(Amphibia: Ranidae) and Rainfall, 150 Am.

Midland Naturalist 185 (2003)...................:ccccccee 18

Joshua J. Lawler et al., Projected Climate Im-

pacts for the Amphibians of the Western Hem-

isphere, 24 Conservation Biology 38 (2010) ........... 18

Norman E. Leonard et al., Survey for Rana

sevosa and Abystoma tigrinum, Two Critically

Imperiled (S1) Pond-Breeding Amphibians in

St. Tammany Parish, Louisiana (2003)............ 22, 26

D. Bruce Means & Ryan C. Means, Effects of

Sand Pine Silviculture on Pond-breeding Am-

phibians in the Woodville Karst Plain of North

Florida, in Amphibians and Reptiles: Status

and Conservation in Florida 56 (Walter E. Me-

shaka & Kimberly J. Babbitt, eds., Krieger

EE 25

Joseph C. Mitchell, Comments (2011)........................ 23

National Council for Air and Stream Improve-

ment, Final Report, Southeast Coastal Plain

Amphibian Survey, NFWF Project #97-074

M. Graham Netting & Coleman J. Goin, Addi-

tional notes on Rana sevosa, 1942 Copeia 259......... 7

iv

TABLE OF AUTHORITIES — Continued

Joseph H.K. Pechmann et al., Amphibian Colo-

nization and Use of Ponds Created for Trial

Mitigation of Wetland Loss, 21 Wetlands 93

(2001), https://srelherp.uga.edu/projects/docs/

rbay/RefugePonds-200 1 . pdf ...................ccccceeeeeeeeeees 20

Joseph H.K. Pechmann, Peer Review Comments

Gora ctinniincbusocpanhinenicnnsectinenenstinsnagiananiappaseinaiiaii 12, 14, 17

Joseph H.K. Pechmann et al., Research on Con-

servation and Recovery of the Endangered

Dusky (Mississippi) Gopher Frog, Period of

Performance: 1 January 2012-31 December

2016 (2017) (unpublished report, on file with

ee iniesisisdevssindiaieinsorcaroianiticateiaiipeiinseataeinsiahiinitine 8,9, 17

Joseph H.K. Pechmann et al., Research on Con-

servation and Recovery of the Endangered

Dusky (Mississippi) Gopher Frog, Period of Per-

formance: 1 January 2017-22 February 2018

(unpublished report, on file with author)............ 8, 22

Joseph H.K. Pechmann et al., Survey for Criti-

cally Imperiled (S1) Pond-Breeding Amphibi-

ans in St. Tammany Parish, Louisiana

Fee iresinsipusccsnnsniininmmatectstepenatnieusiuiienmnentiin 11, 13, 22

Stephen C. Richter & Richard A. Seigel, Annual

Variation in the Population Ecology of the En-

dangered Gopher Frog, Rana sevosa Goin and

Netting, 2002 Copeia 962 ................cccccccceeeeeeeeeeeeeees 14

Stephen C. Richter et al., Genetic Consequences

of Population Reduction and Geographic Iso-

Vv

TABLE OF AUTHORITIES — Continued

Page

Stephen C. Richter, Peer Review Comments

SITE Nidacnsccsssapeuibaldusesiniehediubdnnmebennciinbuschenstaqunbditianmieton 19

Stephen C. Richter, Peer Review Comments

Te cbse chinddvainiinennianinsenesetinbiangeidslaeniseialieiétbndammmncrentens 20

Stephen C. Richter et al., Postbreeding Move-

ments of the Dark Gopher Frog, Rana sevosa

Goin and Netting: Implications for Conserva-

tion and Management, 35 J. Herpetology 316

Stephen C. Richter et al., Stochastic Variation in

Reproductive Success of a Rare Frog, Rana

sevosa: Implications for Conservation and for

Monitoring Amphibian Populations, 111 Bio-

logical Conservation 171 (2003) .....................c0:000 14

Stephen C. Richter & John B. Jensen, Rana

sevosa Goin and Netting, 1940, in Amphibian

Declines 584 (Michael Lannoo ed., Univ. of

Cal. Press 2005), excerpt available at https://

amphibiaweb.org/species/59339 ............... 8, 13, 15, 25

Elizabeth A. Roznik & Steve A. Johnson, Burrow

Use and Survival of Newly Metamorphosed

Gopher Frogs (Rana capito), 43 J. Herpetology

a tnistabianiticttinsipnnianinctidtuantinceviandcobeats 15, 18, 25

vi

TABLE OF AUTHORITIES — Continued

Page

Richard A. Seigel et al., Using Well Water to In-

crease Hydroperiod as a Management Option

for Pond-Breeding Amphibians, 34 Wildlife

Soc. Bulletin 1022 (2006), https://doi.org/

10.2193/0091-7648(2006)34[1022: UWWTITH]

Michael A. Sisson, Monitoring Reproductive Ac-

tivity of the Mississippi Gopher Frog and

Evaluating Ponds for Suitability as Gopher

Frog Release Sites (2003) ....................scesceeeeeeeees ID

Society for the Study of Amphibians and Rep-

tiles (SSAR), Comments (2011) ........................ 17, 19

The IUCN Red List of Threatened Species, 2008,

available at http://www.iucnredlist.org/static/

categories _criteria_3_1 ..............ccccceceeeeeseeeeeeeeeeeeeees 10

Robert A. Thomas & Amelia G. Ballew, Survey

for Dusky Gopher Frog (Rana capito sevosa),

Populations in St. Tammany Parish, Louisi-

ANA: 1996-1997 (1997).........ccccceeeecreceeeeeereees 22, 24, 26

Nicole Y. Thurgate & Joseph H.K. Pechmann,

Canopy Closure, Competition, and the Endan-

gered Dusky Gopher Frog, 71 J. Wildlife Mgmt.

a Pinticiteteresrentesintenesiieneatiinnal 8,11, 15

U.S. Fish and Wildlife Service, 5-Year Review:

Summary and Evaluation (2015)....... 8, 9, 10, 21, 23

U.S. Fish and Wildlife Service, Mississippi Go-

pher Frog Fact Sheet (2012) .................cccceeceeeeneeeeeees 8

1

INTERESTS OF AMICI CURIAE'

Amici Curiae are herpetologists who research and

study amphibians and reptiles, with a special empha-

sis on gopher frogs. They are some of the nation’s top

experts in amphibian ecology and retain a strong in-

terest in the conservation of the dusky gopher frog.

They consider the U.S. Fish and Wildlife Service's

(FWS’s) critical habitat designation of Unit 1 essential

for the conservation of this species. More information

about the specific interests and qualifications of the ex-

perts is provided below.

Dr. I. Brian Crother is an Edward G. Schlieder

Professor in Environmental Studies and Sustainabil-

ity and is the Assistant Dean of the College of Science

and Technology at Southeastern Louisiana University.

He coauthored (with Dr. Jeanne Young) the study that

elevated Rana sevosa to a species and has coauthored

other work on dusky gopher frogs. His over 100 publi-

cations mostly have covered the ecology and evolution

of amphibians and reptiles, including specific long

term surveys of amphibians and reptiles in southeast-

ern Louisiana wetlands.

' The parties’ blanket consent to the filing of amicus briefs

has been lodged with the Clerk of this Court. Pursuant to this

Court’s Rule 37.6, Amici Curiae certify that this brief was not au-

thored in whole or in part by counsel for any party and that no

person or entity other than Amici or their counsel made a mone

tary contribution intended to fund the preparation or submission

of this brief.

2

Dr. C. Kenneth Dodd, Jr. received his Ph.D. in

Zoology at Clemson University, Clemson, South Caro-

lina, in 1974. Most of his career was with the U.S. De-

partment of Interior: Office of Endangered Species

1976-1984 (as Staff Herpetologist) and the Research

division of the U.S. Fish and Wildlife Service, later

transferred to the U.S. Geological Survey (USGS;

1984-2007), where he served as Project Leader of the

USGS Amphibian Research and Monitoring Initiative

in the southeastern United States. He is currently

Courtesy Associate Professor in the Department of

Wildlife Ecology and Conservation at the University of

Florida. Dr. Dodd has published more than 220 papers,

reviews, and books, mostly on reptile and amphibian

ecology, conservation, and management. His book

Frogs of the United States and Canada was published

by Johns Hopkins University Press in 2013, and an ed-

ited volume Amphibian Ecology and Conservation: A

Handbook of Techniques was published by Oxford Uni-

versity Press in 2010.

Dr. Steve A. Johnson is an Associate Professor

of Wildlife Ecology at the University of Florida in

Gainesville. He holds a Ph.D. from the University of

Florida and B.S. and M.S. degrees from the University

of Central Florida. Dr. Johnson’s area of expertise is

natural history and conservation of amphibians and

reptiles. Prior to his employment at UF, he worked as

a Research Wildlife Biologist for the US Geological

Survey’s Amphibian Research and Monitoring Initia-

tive. He and his students have studied gopher frogs in

northern Florida for more than 20 years. In 2018, he

3

received the Paul Moler Herpetological Conservation

Award for his career-long commitment to conservation

of amphibians and reptiles.

Dr. Michael Lannoo is a professor at Indiana

University and an affiliate of the Illinois Natural His-

tory Survey at the University of Illinois, and Purdue

University. Over the past decade, he has published 29

papers on the biology of crawfish frogs (Rana areola-

tus), sister species to the gopher frog group. Subjects of

these papers include natural history (burrow habita-

tion, timing of breeding, breeding migrations, climate

effects), ecology (demographics, metapopulation dy-

namics), population survey methods, genetics, disease,

and colonization and use of post-industrial landscapes.

In 2001, he received the Parker/Gentry Award for Ex-

cellence and Innovation in Conservation Biology from

The Field Museum of Natural History, Chicago, IL.

This award honors “an outstanding individual, team or

organization whose efforts are distinctive and coura-

geous and have had a significant impact on preserving

the world’s natural heritage, and whose actions and

approaches can serve as a model to others.”

Dr. Joseph C. Mitchell is currently a research

associate with the Florida Museum of Natural History

and partially retired. His Ph.D. is in ecology from the

University of Tennessee. He owns his own environmen-

tal consulting business. He has worked on a wide array

of conservation issues for the U.S. Forest Service, Fish

and Wildlife Service, National Park Service, 20 Navy

and Marine installations for the Department of De-

fense, The Nature Conservancy, and numerous private

4

environmental companies on private lands. Most of his

150 reports to these agencies are on conservation is-

sues involving amphibians (frogs and salamanders).

He served the NGO Partners in Amphibian and Rep-

tile Conservation (PARC) Management Working

Group as member and chair (2000-2009). He origi-

nated the acclaimed Habitat Management Guidelines

for Amphibians and Reptiles in the United States se-

ries for PARC. He has written over 400 scientific arti-

cles, wildlife magazine articles, natural history notes,

book reviews, and eight books.

Dr. Stephen C. Richter is a Professor of Biology

and Associate Director of the Division of Natural Areas

at Eastern Kentucky University. He has been studying

gopher frogs since 1995, served as a peer reviewer for

the FWS’s critical habitat designation, and has pub-

lished 16 of his 49 scientific papers and book chapters

on the natural history, population genetics, and conser-

vation biology of gopher frogs. He has co-taught

courses on wetland restoration, and his primary re-

search (13 publications to date) is heavily focused on

wetlands, amphibians that require ephemeral wet-

lands for successful reproduction (similar to gopher

frogs), and best management practices for wetland res-

toration.

Dr. Richard A. Seigel is Professor of Biology in

the Department of Biological Sciences at Towson Uni-

versity in Maryland. He received his B.S. in Zoology &

Physiology from Rutgers University, his M.S. in Biol-

ogy from the University of Central Florida, and his

5

Ph.D. in Systematics and Ecology from the University

of Kansas. His major research interests are in the pop-

ulation ecology and conservation biology of amphibi-

ans and reptiles, especially snakes, turtles, and frogs.

He has published over 90 peer-revised papers and five

books on the ecology and conservation of amphibians

and reptiles and was named the winner of the 2013

Paul Moler Herpetological Conservation Award from

the Florida Chapter of the Wildlife Society. He was the

lead researcher on the ecological studies of the dusky

gopher frog in Mississippi from 1995-2001.

Dr. William Sutton is an Assistant Professor of

Wildlife Ecology at Tennessee State University in

Nashville, Tennessee. Dr. Sutton’s research program

focuses primarily on the impacts of disturbance (natu-

ral and anthropogenic disturbances) on wildlife popu-

lations. His research also includes habitat modeling for

rare and endangered species, such as amphibians and

reptiles. In addition to his academic responsibilities,

Dr. Sutton is involved with the Southeastern Partners

in Amphibian and Reptile Conservation (SEPARC)

and has served as the co-chair and long-term steering

committee member. Dr. Sutton has worked with the

dusky gopher frog in the context of evaluating the sus-

ceptibility of the species to amphibian pathogens, in-

cluding ranaviruses.

Dr. Nikki Thurgate is a senior research fellow

at La Trobe University. She holds a B.S. from James

Cook University and a Ph.D. from the University of

New Orleans. She has expertise in animal ecology and

6

management. She has worked on a number of endan-

gered species globally to try to understand why certain

species become extinct while others persist. Her Ph.D.

research was on dusky gopher frogs in Mississippi (6

years) and she went on to work with gopher frogs in

North Carolina for an additional 3 years.

Dr. Jeanne Young holds a B.S. from Louisiana

State University, a M.S. from Southeastern Louisiana

University and a Ph.D. from Charles Darwin Univer-

sity. She has expertise in ecological physiology and evo-

lutionary biology of reptiles and amphibians. Her M.S.

investigated reproduction, movement patterns and

population genetics of gopher frogs. Her Ph.D. research

investigated evolutionary and physiological correlates

of ecology of hylid frogs in the Northern Territory of

Australia.

a

a

SUMMARY OF ARGUMENT

The dusky gopher frog is at extremely high risk of

extinction in the wild. With only one viable population

in Mississippi facing a myriad of identifiable but un-

predictable threats such as drought and disease, it is

essential that populations outside of Mississippi be es-

tablished. Unit 1 was home to dusky gopher frogs in

the mid-1960s, is distant enough from the existing pop-

ulations that it would likely be unaffected by events

which pose a risk to the continued existence of the Mis-

sissippi populations, and contains the rare ephemeral

7

ponds which serve as breeding habitat for the dusky

gopher frog. The rarity of these ponds in the dusky go-

pher frog’s historical range and the difficulty of creat-

ing them render the ponds and their surrounding

uplands essential for conservation of this species. Unit

1 also contains upland habitat, which, while not ideal,

is nonetheless suitable for the dusky gopher frog and

can be restored to optimal conditions.

¢

ARGUMENT

I. The Dusky Gopher Frog is Critically En-

dangered.

The dusky gopher frog (also referred to as the

Mississippi gopher frog), Rana sevosa (= Lithobates

sevosus), historically occupied three states — Louisiana,

Mississippi, and Alabama — and was once abundant in

coastal Mississippi.” The species was historically fairly

common in distribution, but a drastic loss of habitat

* AR 33 (M. Graham Netting & Coleman J. Goin, Additional

notes on Rana sevosa, 1942 Copeia 259, 259); AR 963 (Michael A.

Sisson, Monitoring Reproductive Activity of the Mississippi Go

pher Frog and Evaluating Ponds for Suitability as Gopher Frog

Release Sites 1 (2003)); AR 1562 (Stephen C. Richter et al., Genetic

Consequences of Population Reduction and Geographic Isolation

in the Critically Endangered Frog, Rana sevosa, 2009 Copeia 799,

801, 802).

8

has decimated the population.’ Estimates at the time

of the critical habitat designation number the total

adult population at only approximately 100 individual

frogs in Mississippi.*

Currently, a single viable population of the dusky

gopher frog is known to exist, a natural population in

a pond in the DeSoto National Forest in southern Mis-

sissippi known as Glen’s Pond.* Recently, the Glen’s

Pond population has not thrived: in 2016 only 11 juve-

nile frogs were counted in surveys of Glen’s Pond, and

in 2017 surveys reflected that no natural juveniles

were produced at Glen’s Pond.*® At the time of critical

* Stephen C. Richter & John B. Jensen, Rana sevosa Goin

and Netting, 1940, in Amphibian Declines 584, 584 (Michael

Lannoo ed., Univ. of Cal. Press 2005), excerpt available at

https//am phibiaweb.org/species/5939; AR 1243-1244 (Nicole Y.

Thurgate & Joseph H.K. Pechmann, Canopy Closure, Competi-

tion, and the Endangered Dusky Gopher Frog, 71 J. Wildlife Mgmt.

1845, 1845-1846 (2007)).

* AR 2146 (US. Fish & Wildlife Service, Mississippi Gopher

Frog Fact Sheet 2 (2012)). In its 2015 5-Year Review, FWS esti-

mated the total number of adult frogs at that time to be 160,

though the vast majority of those individuals — 135 — are reported

as occurring in only one location: Glen’s Pond. U.S. Fish and Wild-

life Service, 5-Year Review: Summary and Evaluation 8-9 (2015)

(“5-Year Review”).

® See Joseph H.K. Pechmann et al., Research on Conserva-

tion and Recovery of the Endangered Dusky (Mississippi) Gopher

Frog, Period of Performance: 1 January 2012-31 December 2016

3-4 (2017) (unpublished report, on file with the author); 5-Year

Review at 3.

* Pechmann et al., supra note 5, at 3; Joseph H.K. Pechmann

et al., Research on Conservation and Recovery of the Endangered

Dusky (Mississippi) Gopher Frog, Period of Performance: 1

9

habitat designation, two other small, vulnerable popu-

lations existed in Mississippi near Glen’s Pond: 1)

Mike’s Pond, the only known existing natural popula-

tion outside of Glen’s Pond, located approximately 20

miles east of Glen’s Pond, and 2) McCoy’s Pond, located

approximately 16 miles east of Mike’s Pond.’

The last remaining breeding population of dusky

gopher frogs at Glen’s Pond represents the only viable

population within what was historically a complex

metapopulation, which contained multiple connected

populations with breeding wetlands across a landscape

of continuous upland habitat.* FWS defines a viable

population as “one that is large enough to maintain

sufficient genetic variation to enable it to evolve and

respond to natural habitat and environmental

changes, and exhibits parameters consistent with a

stable or increasing reproductive rate, without the ad-

dition of frogs raised in artificial environments or

January 2017-22 February 2018 6 (unpublished report, on file

with author).

’ JA. 148; see also 5-Year Review at 9 (citing distances be-

tween ponds). The population at McCoy's Pond is likely extinct.

Id. (“No dusky gopher frogs have been observed at [McCoy’s Pond)

since a frog was heard calling there in 2004.”). The population at

Mike’s Pond may be extinct as well. Jd. (citing 2013 as last record

of the frog at Mike’s Pond); see also Pechmann et al., supra note 5.

tion efforts at several sites in Mississippi, including at a pond es-

tablished by The Nature Conservancy, but none of these

populations are established and self-sustaining. Pechmann et al.,

supra note 5.

® AR 1552, 1554 (Richter et al., supra note 2, at 802, 804).

10

introduced from other populations.” Dusky gopher

frogs are pond breeding amphibians and each subpop-

ulation is organized around a breeding pond and the

adjoining upland habitat. Each subpopulation in turn

interacts with the various adjoining subpopulations.

The resulting network of connectivity between ponds

and subpopulations establishes a metapopulation

structure across the wider landscape."°

It is because of this very small total number of

frogs with only one known viable population that the

US. Fish and Wildlife Service correctly listed the spe-

cies as Endangered under the U.S. Endangered Species

Act, and the International Union for Conservation of

Nature and Natural Resources (IUCN) listed it as Crit-

ically Endangered on its Red List."' A species is consid-

ered Critically Endangered when it is “facing an

extremely high risk of extinction in the wild.” Data

indicate that the dusky gopher frog is one of the most

® 5-Year Review at 34.

* AR 1552 (Richter et al., supra note 2, at 802). FWS accu-

rately states: “To be a viable population, a dusky gopher frog pop-

ulation must be a metapopulation.” 5-Year Review at 34

(emphasis omitted).

" Final Rule to List the Mississippi Gopher Frog Distinct

Population Segment of Dusky Gopher Frog as Endangered, 66

Fed. Reg. 62,993, 62,993 (Dec. 4, 2001); The IUCN Red List of

Threatened Species, 2008, http://www.iucnredlist.org/static/

categories_criteria_3_1 (last visited June 27, 2018).

@ Td.

11

endangered, if not the most endangered, species of am-

phibian in the United States.”

The species faces a variety of threats, but FWS

accurately found that the primary threat is the degra-

dation, destruction, and fragmentation of suitable hab-

itat.* As a terrestrial amphibian, the dusky gopher

frog is especially vulnerable to alteration, loss, and

fragmentation of habitat. Thus, FWS has appropri-

ately focused on locating, protecting, and restoring

suitable habitat.

While no dusky gopher frogs have been found in

Louisiana since the mid-1960s or in Alabama since

1922, one of the last observed locations of the dusky

gopher frog in Louisiana was within the critical habi-

tat now designated by the FWS as Unit 1."

AR 1662 (Richard A. Seigel, Comments (2011)); see also AR

1243 (Thurgate & Pechmann, supra note 3).

“™ 66 Fed. Reg. at 62,994.

8 JA. 167 (Designation of Critical Habitat for Dusky Gopher

Frog Final Rule, 77 Fed. Reg. 35,118, 35,135 (June 12, 2012)) (“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.”); see also AR 3098-3104; AR 1099, 1103 (Joseph H.K.

Pechmann et al., Survey for Critically Imperiled (S1) Pond-Breed-

ing Amphibians in St. Tammany Parish, Louisiana 10, 14 at Table

1 (2006)). An additional record from 1967 reflects the dusky go-

pher frog located in the same area as Unit 1: “Dusky Gopher Frogs

were known from the flatwoods areas north of Lake Pontchar-

train, from near Ponchatoula to Slidell, and north on the table-

land west of the Pearl River to near Bush. They were last found

in Louisiana in 1967 near Hickory, St. Tammany Parish, by grad-

uate students from the University of Louisiana at Lafayette.” Jeff

Boundy & John L. Carr, Amphibians & Reptiles of Louisiana 138

12

Il. Unit 1 is Essential to the Conservation of

the Dusky Gopher Frog.

In 2011, FWS conducted a habitat assessment of

the St. Tammany Parish, Louisiana, property ulti-

mately designated as Unit 1 and found five ephemeral

ponds and associated upland terrestrial habitat.'’* We

agree with the FWS that the 1,544 acres in Unit 1 are

essential for the conservation of the dusky gopher frog.

FWS correctly concluded that the Unit 1 critical habi-

tat is essential for the conservation of the dusky go-

pher frog based on its accurate findings that Unit 1

“provides: (1) breeding habitat for the dusky gopher

frog in a landscape where the rarity of that habitat is

a primary threat to the species; (2) a framework of

breeding ponds that supports metapopulation struc-

ture important to the long-term survival of the dusky

gopher frog; and (3) geographic distance from extant

dusky gopher frog populations, which likely provides

protection from environmental stochasticity.”"”

The ephemeral ponds located in Unit 1 represent

the best remaining breeding habitat for the dusky go-

pher frog known to exist in Louisiana.” Further, the

(La. State Univ. Press 2017); see also J.A. 127 (Alabama historical

record).

*® JA. 160.

JA. 126. FWS uses the term “stochastic” to describe peri-

odic natural events or existing or potential human-induced

events. J.A. 157.

% JA. 53 (Joseph H.K. Pechmann, Peer Review Comments

(2011)) (“The critical habitat proposed in Unit 1 contains the best

gopher frog habitat remaining in Louisiana, to my knowledge, and

some of the best breeding ponds available anywhere in the

13

FWS was correct in concluding that “[blased on the

best scientific information available to the Service, the

five ponds in Unit 1 provide breeding habitat that in

its totality is not known to be present elsewhere within

the historic range of the dusky gopher frog.” It is in-

disputable that the dusky gopher frog was historically

found in Unit 1 and that one of the last known loca-

tions of the frog in Louisiana was in a pond within Unit

1.” If reintroduced to Unit 1, these ponds would sup-

port dusky gopher frog reproduction.

A. The Dusky Gopher Frog’s Breeding Hab-

itat is Rare.

Adult dusky gopher frogs range in size from 56—

105 mm (2.2—4 inches).”" The dusky gopher frog breeds

in small ephemeral ponds that lack fish, and it spends

the majority of its life in and around underground bur-

rows found in the upland forest habitat surrounding

the breeding pond.” The ponds are referred to as

historical range of R. sevosa. I strongly agree with the Service's

determination that this area is essential for the conservation of

R. sevosa.”).

” J.A. 125; see also J.A. 160 (“In fact, no group of five ponds

such as these was found in any of the areas of historical occur-

rence that we have searched in Mississippi.”).

2° AR 1099, 1103 (Pechmann et al., supra note 15); see also

Boundy & Carr, supra note 15 and J.A. 160, 167.

7! Richter & Jensen, supra note 3, at 585.

2 66 Fed. Reg. at 62,994; see also AR 870, 873 (Stephen C.

Richter et al., Postbreeding Movements of the Dark Gopher Frog,

Rana sevosa Goin and Netting: Implications for Conservation and

Management, 35 J. Herpetology 316, 316, 319 (2001)).

14

ephemeral because they fill with water and completely

dry out over a cyclical period of time.” Dusky gopher

frog breeding ponds must be ephemeral and geograph-

ically isolated from other waterbodies in order to en-

sure the absence of predacious fish, which cannot

survive the dry cycle of the pond.” The frog’s breeding

season is directly dependent on the hydrological cycle

of the local ecosystem.” When seasonal winter rainfall

sufficiently fills the shallow ephemeral ponds, the male

frogs move to the ponds and call to the females.” In

years without sufficient rainfall, the males will not

move to the ponds and breeding typically will not oc-

cur.”’

During breeding, females attach clusters of eggs to

vertical emergent vegetation within the pond. After

the breeding cycle, adult frogs return to upland

% JA. 161.

™ See 66 Fed. Reg. at 62,999 (“Predation from fish probably

contributed to the loss of historic populations. Temporary ponds

altered to form more permanent bodies of water and stocked with

fish are no longer suitable breeding sites.”).

% JA. 151.

26 See AR 895 (Stephen C. Richter & Richard A. Seigel, An-

nual Variation in the Population Ecology of the Endangered Go-

pher Frog, Rana sevosa Goin and Netting, 2002 Copeia 962, 966);

see also AR 945 (Stephen C. Richter et al., Stochastic Variation in

Reproductive Success of a Rare Frog, Rana sevosa: Implications

for Conservation and for Monitoring Amphibian Populations, 111

Biological Conservation 171, 172 (2003)).

27 See AR 898 (Richter & Seigel, supra note 26, at 969); see

also J.A. 52 (Joseph H.K. Pechmann, Peer Review Comments

(2011)).

15

burrows.” Following metamorphosis, juvenile frogs

also move to the burrows in the surrounding upland

habitat.” The ephemeral ponds often dry by early to

mid-summer. Frogs will remain in the upland habitat

until the following breeding season.

Further, the dusky gopher frog requires that the

ponds have an open canopy, and it uses emergent and

submerged vegetation for egg attachment by female

frogs.” Research suggests that open pond canopies are

particularly important as this characteristic has a di-

rect effect on tadpole development and metamorpho-

sis."' Water in the pond must be free of pollution,

suspended sediment, and road runoff as these impuri-

ties impair larval development.” The ephemeral pond

must contain water for sufficient periods to allow ade-

quate time for hatching, development, and metamor-

phosis of the larvae.”

™“ 66 Fed. Reg. at 62,994.

™® J.A. 150; see also AR 1412 (Elizabeth A. Roznik & Steve A.

Joh» on, Burrow Use and Survival of Newly Metamorphosed Go

phe: Frogs (Rana capito), 43 J. Herpetology 431, 432 (2009)).

*” AR 1248 (Thurgate & Pechmann, supra note 3, at 1850);

Richter & Jensen, supra note 3, at 585.

™" AR 1243 (Thurgate & Pechmann, supra note 3).

™ J.A. 152 (“An unpolluted wetland with water free of preda-

ceous fish, suspended sediment, pesticides, and chemicals associ

ated with road runoff is important for egg development, tadpole

growth and development, and successful mating and egg-laying

by adult frogs.”).

* JA. 151, 153; see also AR 1243 (Thurgate & Pechmann, su-

pra note 3, at 1845).

16

This combination of necessary features — ponds

which retain the right amount of water for only limited

days in the year, number several in a particular loca-

tion, are isolated, contain vertical emergent vegeta-

tion, have an open canopy, and contain water free of

pollution — is rare in the dusky gopher frog’s historical

range.™ We agree with the FWS’s focus on this element

of the frog’s habitat because “their rarity in the envi-

ronment is one of the primary reasons that the frog is

endangered.””

B. Habitat Geographically Remote from

the Existing Gopher Frog Populations

is Essential to the Conservation of the

Species.

The gopher frog populations in Mississippi face a

high risk of extinction from stochastic events — threats

posed by disease and other events for which occur-

rences vary in space and time. These include, but are

not limited to, events such as drought or flooding and

genetic bottlenecks and inbreeding associated with low

population sizes.” Due to the gopher frog’s overall! low

™ See JA. 125 (“Isolated, ephemeral ponds that can be used

as the focal point for establishing these populations are rare, and

this is a limiting factor in dusky gopher frog recovery.”); see also

id. (describing unsuccessful searches for similar pond habitat in

Alabama, described as unsuitable because the “ponds contained

woody shrubs and trees, were occupied by fish, occurred within

agricultural fields, and/or were surrounded by trailers and

houses.”).

* JA. 158; see also J.A. 126.

* JA. 115.

17

numbers and its isolation to a relatively small geo-

graphic area, these threats which are typically local-

ized in impact thus loom large over the entire extant

population; a single outbreak poses a risk of extinc-

tion.”

For example, in 2003 a majority of the dusky go-

pher frog tadpoles at Glen’s Pond were killed by an un-

known disease.“ With only one breeding site, the

disease effectively eliminated any population increase

that would have occurred due to reproduction during

the 2003 breeding season.” While this disease did not

appear to impact adult dusky gopher frogs, it continues

to be present in the Glen’s Pond site.”

Drought and decreased rainfall threaten all life

stages of the dusky gopher frog. The amount and tim-

ing of precipitation can have dramatic effects on

ephemeral breeding ponds, even resulting in years

where zero reproduction occurs.*' Additionally, studies

on the related Rana (= Lithobates) capito reflect a

" See J.A. 52-53 (Pechmann, supra note 18 (“Due to the low

number of remaining populations and its very restricted range,

R. sevosa may be at risk of extirpation from events such as

drought or disease which vary over space and time.

sites over the entire range of R. sevosa into which it could be

translocated is essential to decrease the potential risk of extinc

tion of the species from events such as these and provide for the

species’ eventual recovery.”)).

* AR 967 (Sisson, supra note 2, at 5).

” Id.

” Pechmann et al., supra note 5, at 51-52.

* AR 1816 (Society for the Study of Amphibians and Reptiles

(SSAR), Comments 2 (2011)); J.A. 126.

18

significant positive relationship between reproduction

and rainfall during the breeding season.“ Eggs and

larvae are particularly vulnerable to desiccation (dry-

ing out) if sufficient water does not remain in the

ponds, but changes in precipitation may also affect

juvenile and adult survivorship in the frog’s post-

metamorphosis stage when it moves out of the breed-

ing ponds into upland habitat.“ Additionally, climate

change poses a particular threat to the continued ex-

istence of the dusky gopher frog.“ Climate change will

have a heightened impact on dusky gopher frogs and

other amphibians because they cannot easily disperse

to areas with different climate regimes, especially

ers created by fragmented habitats.“ Hydrological

“ AR 1531 (John B. Jensen et al., The Relationship Between

Breeding by the Gopher Frog, Rana capito (Amphibia: Ranidae)

and Rainfall, 150 Am. Midland Naturalist 185, 185 (2003)).

“ Cynthia Carey & Michael A. Aiexander, Climate Change

and Amphibian Declines: Is There a Link? , 9 Diversity and Distri-

butions 111, 114 (2003), https//www.researchgate.net/publication/

230033657 Climate change and amphibian declines Is there

a link (“Because most amphibians lay eggs in standing water,

eggs and larvae are particularly vulnerable to desiccation.”) (in-

ternal citation omitted); J.A. 126 and AR 1416 (Roznik & Johnson,

supra note 29, at 435).

“ AR 1469 (Joshua J. Lawler et al., Projected Climate Im-

pacts for the Amphibians of the Western Hemisphere, 24 Conser-

vation Biology 38, 38 (2010)); see also J.A. 126.

“ Carey & Alexander, supra note 43 (“Because temperature

and moisture have such pervasive effects on amphibian biology,

including reproduction, and because of their limited mobility, am-

phibians should be relatively vulnerable to the effects of rapid cli-

mate change, compared to other terrestrial vertebrates.”).

19

changes to any of the ponds at currently occupied sites

could result in extinction of that population and

threaten survival of the species.“ Thus, as noted by

peer reviewer Stephen Richter: “Multiple breeding

ponds will provide variation in the length of time

ponds hold water (hydroperiod) across the landscape

and will increase probability that reproductive success

occurs in one or more ponds in a given year.”*’

Because of the significant risk posed by drought,

disease and other threats, restricting critical habitat

designation to sites in Mississippi is not sufficient for

conservation of the dusky gopher frog. We agree with

peer reviewer Joseph Pechmann that “Potential R.

sevosa translocation sites must be spread out over as

wide a geographic area as possible because events such

as droughts and disease tend to be spatially autocorre-

lated. Therefore, [the dusky gopher frog] will be less at

risk of extinction if poprlations || are established

across its range in Louisiana and Alabama, rather

“ SSAR Comments, supra note 41, and J.A. 126; see also

Richard A. Seigel et al., Using Well Water to Increase Hydroperiod

as a Management Option for Pond-Breeding Amphibians, 34 Wild-

life Soc. Bulletin 1022, 1025 (2006), https://doi.org/10.2193/009 1 -

7648(2006)34[1022:UWWTIH]2.6.CO;2 (“When populations

become isolated, as is true for dusky gopher frogs at Glen’s Pond,

the effects of annual reproductive failure escalate and can result

in extinction of such isolated populations. When there are only a

limited number of populations, such a local extinction may be un-

acceptable. In fact, R. sevosa appears susceptible to extinction fol.

lowing complete reproductive failure from 4 to 5 consecutive years

of low rainfall.”).

“ AR 1541 (Stephen C. Richter, Peer Review Comments 3

(2010)).

20

than just in southern Mississippi."“ As FWS noted in

its Final Rule: “The scientific peer reviewers that re-

sponded to our original proposed critical habitat rule

were united in their assessment that this proposal was

inadequate for the conservation of the dusky gopher

frog and that we should look within the species’ his-

toric range outside the state of Mississippi for addi-

tional habitat for the designation.””

In sum, the FWS correctly concluded that “Unit 1

is essential to the conservation of the dusky gopher

frog because it provides ... geographic distance from

extant dusky gopher frog populations, which likely

provides protection from environmental stochastic-

ity.””

C. The Unique Qualities of Unit 1 Make It

Essential for the Conservation of the

Dusky Gopher Frog.

Ephemeral ponds are the product of a complex bal-

ance of hydrology and are difficult to artificially cre-

ate.*' FWS describes lengthy efforts it engaged in with

“ J.A. 53; see also J.A. 39 (Stephen C. Richter, Peer Review

Comments (2011)) (“I applaud the proactive designation of multi-

ple areas currently unoccupied by the species but that represent

promising sites for reintroductions to what appear to be historic

breeding ponds and surrounding uplands. These additional sites

truly are essential to the conservation of the species.”).

* JA. 124.

" JA. 126.

*! Joseph H.K. Pechmann et al., Amphibian Colonization and

Use of Ponds Created for Trial Mitigation of Wetland Loss, 21

21

the U.S. Forest Service to create a single ephemeral

pond in the DeSoto National Forest, explaining: “It has

taken 10 years to reach the point where we consider

this pond ready to be used as a reintroduction site, and

its value as a breeding site has not yet been proven.”

We agree with the FWS that “i]t is highly unlikely

that five ponds, similar to those that currently exist in

Unit 1, could be created in the landscape within a

timeframe that would provide near-term conservation

benefits to the dusky gopher frog.”

Thus, the existence and excellent condition of the

five ephemeral ponds in Unit 1 render it essential for

the conservation of the dusky gopher frog. The ponds

are ephemeral and geographically isolated from other

water sources.” As such, they can serve as breeding

habitat and a predator-free site for the larvae and tad-

poles to develop. The ponds are open canopied with

Wetlands 93, 96, 106-107 (2001), https//srelherp.uga.edu/projecta/

doca/rbay/RefugePonds-2001.pdf (describing initial difficulty in

achieving water retention in created pond; that problem was re-

solved by the installation of a plastic liner, which then made the

pond permanent rather than ephemeral); Charlene D’Avanzo,

Long-Term Evaluation of Wetland Creation Projects, in 2 Perspec-

tives, Wetland Creation and Restoration: The Status of the Sci-

ence 75, 75 (John A. Kusler and Mary E. Kentula eds., USEPA

1989), https//www.epa.gov/sites/production/filea/20 15-08/documents/

wetland creation and restoration - the status of the science

vol_2_1.pdf.

" JA. 122-123. This constructed pond has yet to support a

viable population. 5-Year Review at 3, 9-10.

™ JA. 123.

™ JA. 123, 125.

22

good water quality.” Surveys in the 1990s and 2000s

noted that the ephemeral ponds in what is now Unit 1

were “considered similar in appearance (water clarity,

depth, vegetation) to ponds in Mississippi used for

breeding by the dusky gopher frog.” In 2011, FWS

conducted a habitat assessment of Unit 1 and con-

cluded that the five ephemeral ponds were “intact and

remarkable quality” and “determined that [the] five

isolated, ephemeral wetlands in that area are similar

to ponds where dusky gopher frogs currently breed in

Mississippi.””’

Of equal importance to the high quality of Unit 1’s

ephemeral ponds is the existence of several of them

within close proximity of one another. The FWS was

correct in concluding that “the five ponds are in close

enough proximity to each other that adult frogs could

move between them and create a metapopulation.””

This network of five ponds would support separate

°° AR 1097 (Pechmann et al., supra note 6, at 8 (“Water qual-

ity is good in all seven ponds we measured it in. . . .”); id. at 1099

(noting that “open canopy temporary ponds are very rare. The few

open canopy ponds we surveyed included the two historic sites for

R. sevosa we were able to locate.”).

%* J.A. 160 (citing Robert A. Thomas & Amelia G. Ballew, Sur-

vey for Dusky Gopher Frog (Rana capito sevosa), Populations in

St. Tammany Parish, Louisiana: 1996-1997 (1997); Norman E.

Leonard et al., Survey for Rana sevosa and Abystoma tigrinum,

Two Critically Imperiled (S1) Pond-Breeding Amphibians in St.

Tammany Parish, Louisiana (2003); and Joseph H.K. Pechmann

et al., Survey for Critical Imperiled (S1) Pond-Breeding Amphibi-

ans in St. Tammany Parish, Louisiana (2006)).

5” J.A. 124-125, 160.

JA. 167.

23

breeding subpopulations and could result in the emer-

gence of a metapopulation within the geographic area

of Unit 1.° Outside of Glen’s Pond, this framework is

unique within the historical range of the dusky gopher

frog and, therefore, essential.”

D. Unit 1 is Essential Despite Its Lack of

Optimal Upland Habitat.

The FWS correctly identified upland forested non-

breeding habitat and upland habitat connecting the

breeding and nonbreeding habitat as primary ele-

ments of dusky gopher frog habitat.” Unit 1 possesses

upland forest nonbreeding habitat and connectivity

habitat, though not in optimal conditions.

Essentially, as FWS stated, the frog’s upland non-

breeding habitat must provide for “food, shelter, and

protection from the elements and predation.”” Tradi-

tionally, the dusky gopher frog’s upland habitat con-

sisted of longleaf pine savannah, and this remains

optimal for the frog’s upland habitat, leading FWS to

describe the existing loblolly pine plantation upland

*° Id.; see also AR 1664 (Joseph C. Mitchell, Comments 1

(2011)).

* JA. 125. The cattle watering tanks being used to artifi-

cially raise tadpoles to metamorphosis are not a replacement for

the ephemeral pond breeding habitat. These tanks can only be

used in conjunction with wild breeding ponds, where scientists

gather the frog eggs and ultimately release the metamorphs. See

5-Year Review at 7.

* JA. 153-154.

* Id. at 153.

24

habitat on Unit 1 as poor quality terrestrial habitat.”

However, FWS also accurately concluded that the Unit

1 uplands are restorable to longleaf pine with reason-

able effort.”

Further, even in its current state, Unit 1’s uplands

could provide the necessary food, shelter, and protec-

tion from the elements and predation that the dusky

gopher frog requires. In other words, it is currently

suitable upland habitat. First, evidence indicates that

Unit 1 already has stump holes, which the frog uses for

shelter from predators and protection from desiccation

and extreme temperatures. Dr. Joseph Pechmann’s

field notes from his Unit 1 site visit in 2011 identified

the existence of “some stumps and stump holes around

pond.””

Second, a number of sources document gopher

frogs living on less than ideal upland habitat, includ-

ing pine plantations. A report produced by the Na-

tional Council for Air and Stream Improvement found

that the Carolina gopher frog — Rana capito — was pre-

sent at 17 ponds on forest industry lands, i.e., pine

plantations.” The report stated: “Gopher frogs (17

® Id. at 160.

™ Id. at 167.

* AR 3101; see also J.A. 14. A 1997 survey also noted the

presence of armadillo burrows on the Unit 1 uplands, which the

researchers indicated “should substitute.” AR 559 (Thomas &

Ballew, supra note 56, at 6).

* National Council for Air and Stream Improvement, Final

Report, Southeast Coastal Plain Amphibian Survey, NFWF

25

ponds) were not common |on forest industry lands], but

were identified at ponds more often than some other

species perceived as relatively common.”™’ Rana capito

has also been documented to live on intensely man-

aged Florida pine plantations, albeit at significantly

lower levels than on adjacent national forest lands.”

This demonstrates that commercial pine plantations

can serve as terrestrial habitat for Rana capito,

although they would not be considered optimal habitat

for this species either. Rana sevosa and R. capito are

closely related sister species which have very similar

habitat requirements.” Beyond pine plantations,

Rana capito has also been documented living in

heterogeneous upland habitat that includes fire-

suppressed, closed-canopy pines clumped together

near breeding ponds.” The study documented juvenile

frogs moving from breeding ponds to both open-canopy

Project #97-074 (1999) Table 2 (unpublished report, on file with

author).

* Id. at 33.

“ D. Bruce Means & Ryan C. Means, Effects of Sand Pine

Suviculture on Pond-breeding Amphibians in the Wagduille Karst

Plain of North Florida, in Amphibians and Reptiles: Status and

Conservation in Florida 56, 58 (Walter E. Meshaka & Kimberly J.

Babbitt, eds., Krieger Publishing Co. 2005).

® Richter & Jensen, supra note 3; see also AR 1412 (Roznik

& Johnson, supra note 29, at 431).

” AR 1413, 1416 (Roznik & Johnson, supra note 29, at 432,

435).

26

and closed-canopy upland areas; juveniles from both

groups survived.”

Third, the fact that the dusky gopher frog was doc-

umented in Unit 1 twice in the mid-1960s demon-

strates that the dusky gopher frog persisted in Unit 1

for decades while it was a pine plantation.” Indeed, the

authors of a 1997 survey of the land now designated as

Unit 1, who viewed the ponds and their surrounding

upland habitat, commented: “There is no reason to be-

lieve that the land cannot support Dusky Gopher

Frogs.” The authors of a 2006 survey of St. Tammany

Parish ponds, which included Unit 1, stated the follow-

ing regarding the near universal presence of pine plan-

tations at all the St. Tammany sites: “(I]t is likely that

pine plantations represent a type of land use far more

preferable to amphibians than residential housing or

more intensive types of agriculture.”

Finally, because all but two percent of the original

longleaf pine forests within the historic range of the

frog have been destroyed, FWS must find and restore

"™ AR at 1413-1414, 1416. In fact, although juvenile Rana

capito frogs prefer open-canopy upland habitat, the study re-

flected that the survival rate was higher for the juveniles in the

closed-canopy upland habitat over those in the open canopy up-

lands. Id. at 1415-1417.

™ JA. 167; see also AR 3098-3104; Boundy & Carr, supra note

15; and J.A. 32 (P&F Lumber, Comment (2011) (noting that the

Poitevent patriarch acquired the property in the 1880s and

formed a lumber company)).

™ AR 557 (Thomas & Ballew, supra note 56, at 4).

™ AR 936 (Leonard et al., supra note 56, at 6).

27

degraded upland habitats if the dusky gopher frog is to

recover.” Therefore, while the upland habitat in Unit

1 may not be ideal, it contains elements required by

the dusky gopher frog, and those elements in less than

optimal condition are restorable with a reasonable ef-

fort.

°

CONCLUSION

This Court should affirm the judgment of the

United States Court of Appeals for the Fifth Circuit

upholding FWS’s designation of Unit 1 as critical hab-

itat, as Unit 1 is essential for the conservation of the

dusky gopher frog.

Respectfully submitted this 6th day of July, 2018,

Lisa W. JORDAN

Counsel of Record

TULANE ENVIRONMENTAL LAW CLINIC

TULANE LAW SCHOOL

6329 Freret Street

New Orleans, LA 70118

(504) 314-2481

lwjordan@tulane.edu

Counsel for Amici Curiae Gopher Frog Experts

See 66 Fed. Reg. at 62,995.