(Comment: Typical)
Conservation Nightmare as Landowner Fights Feds Over Property Regulations and Phantom Snake
By CHRIS BENNETT September 21, 2022
Conservation is a twisted liability for Gray Skipper and the Alabama landowner feels betrayed by his own government. Despite Skipper’s family allowing decades of public access to private property for conservation, scientific research, and recreation, a federal agency has dropped a critical habitat designation on 10,000 of the family acres in the name of a threatened snake that doesn’t live on the ground. “No good deed goes unpunished,” Skipper exclaims. “Where has reason gone in this country?”
In February 2020, the U.S. Fish & Wildlife Service (FWS)
tagged 324,679 acres in Alabama and Mississippi as critical habitat for the black pinesnake, including 93,208 acres of private land. Even with only a single black pinesnake sighting on Skipper’s property across almost 30 years, and 60 years of family effort toward habitat preservation, he now is under the regulatory weight of a federal decree that permanently alters the value of his ground and silviculture business. FWS insists economic loss to private landowners, including Skipper, will be minimal. “Who believes that?” he asks. “This is the very definition of overreach.”
Represented by Pacific Legal Foundation (
PLF),
Skipper is in a legal battle as the lead plaintiff in a suit against FWS and the Department of the Interior (DOI). “Office bureaucrats that preach about saving species and taking care of the land are hypocrites because they do nothing but hurt their own cause by breaking trust with private citizens,” Skipper contends. “What landowner wants FWS to show up at their gate? Really, who in the hell actually trusts FWS anymore?”
Map Games
Since 1902, when Skipper’s great-grandfather, W.D. Harrigan Sr., and a business partner, bought Scotch Lumber Company in Fulton, Ala., the Skippers have owned and managed forested land in southwestern Alabama’s Clarke County. In 1956, the family and Scotch Lumber Company began participating in the state’s Wildlife Management Area (WMA) program, opening the acreage for public hunting and wildlife conservation efforts. The Skippers manage a timber operation producing high-quality pine and hardwood, following 40-60-year rotations, thinning, prescribed burns, and other silviculture practices to maintain a balance between forest environment, wildlife habitat, and sustainable business model.
“We once had a strong relationship with the conservation folks because we believed in what they were doing…What’s happened over the last several years is a betrayal of good faith,” says Gray Skipper. (Photo courtesy of Scotch Lumber Co.)
Ironically, the Skippers commitment to conservation contributed to the critical habitat designation, i.e., the more pristine the environment, the more attractive to FWS, contends Charles Yates, PLF attorney. “By opening their land, maintaining original habitat and a complex forest system, encouraging wildlife, and permitting research, the Skipper’s land was identified by FWS.
Critical habitat and the Endangered Species Act treat species as liabilities—not assets. This means families that maintain habitat are punished, and FWS’ policy is self-defeating.”
(FWS was contacted by Farm Journal, and declined all questions related to the black pinesnake critical habitat designation, citing “ongoing litigation.” Likewise, DOI declined comment.)
Prior to the black pinesnake critical habitat designation, Skipper was a model environmental ally, evidenced by the proliferation of wildlife species within the family timber operation. In short, the WMA-Skipper collaboration was a showpiece of success. “Our family had a direct hand in bringing whitetail deer populations back in this country,” Skipper explains. “Louisiana, Mississippi, Texas and other states got part of their herds of today from the Scotch Wildlife Management Area of which our land lies within the boundaries. Same thing with eastern wild turkey populations in a lot of states. We once had a strong relationship with the conservation folks because we believed in what they were doing, and we even granted public access for hunting. What’s happened over the last several years is a betrayal of good faith.”
“I want people to find out how power-hungry FWS is in our case,” he continues. “A landowner already doing the right thing to save a species is not the right person to clamp down on, and it’s crazy because we were already doing everything they wanted based on our own concerns for the environment, including prescribed burns and leaving stumps alone, encouraging habitat. All the generations of my family have been proud to be involved in conservation and didn’t ask or expect anything back. I still believe somewhere down the line, common sense is going to kick in, but that may be naïve on my part.”
FWS actions regarding the black pinesnake will have a long-term, detrimental effect on conservation, contends Scott Jones, CEO of the Forest Landowners Association (FLA), a nonprofit representing approximately 5,000 family forest landowners and 50 million acres of woodland in 45 states, and a co-plaintiff alongside the Skippers. “You’d be hard-pressed to find better land stewards than the Skippers, who use long rotations and a light touch,” Jones says. “Our Association works to foster trust with FWS and landowners to avoid these kind of instances, but now who in their right mind would allow FWS on their private land considering the broken trust and lack of confidence? It couldn’t be more ironic because FWS is the one hampering its own long-term goals.”
On Oct. 6, 2015, the black pinesnake was listed by FWS as threatened under the Endangered Species Act. Five years later (February 2020), following a lawsuit by the Center for Biological Diversity (CBD)
, FWS designated critical habitat for the pinesnake on 324,679 acres split across 8 land units in Alabama and Mississippi, creating a paper haven for the pinesnake on Skipper’s land (part of Unit 7), even though there is little to no evidence the snake resides on his 10,000 acres, and FWS has no authority to reintroduce the reptile. The land—pinesnake presence or not—now is restricted to development and subject to rigorous regulation.
By FWS’ admission, a 2008-2009 survey (conducted for the express purpose of locating black pinesnakes) came up empty—as in zero black pinesnakes recorded. (Photo by Jim Lee, FWS)
Noah Greenwald, environmental species director for CBD, claims critical habitat plays “absolutely no role” in how the Skippers conduct their operation. “A landowner can easily develop land with a critical habitat designation. As long as the landowner doesn’t break WOTUS regulations, they can do anything. There is no legal consideration of the species in question until a federal permit is requested. For the most part, critical habitat has no effect on landowners.”
Skipper puts no stock in Greenwald’s assertions. “How did this happen? I believe these FWS office bureaucrats looked on a map, saw the WMA, and sucked our land right in like it belonged to the state,” Skipper explains. “These are people that have the power to play games with maps.”
Where are the Pinesnakes?
Most adult black pinesnakes (non-venomous) range from 4’-6’ in length, are typically dark brown to black in color, and prefer “sandy, well-drained soils with an open-canopied forest of longleaf pine, a reduced shrub layer, and a dense, vegetative ground cover,” according to FWS. The Skipper’s land is deemed by FWS as “occupied” by the black pinesnake, but if the land is indeed “occupied,” where are the pinesnakes? By FWS’ own admission, a 2008-2009 survey (conducted for the express purpose of locating black pinesnakes) came up empty—as in zero pinesnakes recorded.
According to the complaint, pinesnake presence on Skipper land is isolated to five sightings stretched over 25 years (1990-2015). However, four of the sightings occurred over 20 years prior to the listing, and are suspect, according to Yates and Skipper. “Four isolated observations of black pinesnakes from almost 30 years ago, and one black pinesnake caught in a turkey trap in 2015. That’s it, yet somehow that meets the definition of occupied,” Yates says.
“Thousands of acres for one recent sighting is unbelievable,” Skipper echoes. “It’s crazy that FWS themselves don’t have any clue whether the snake was even seen 30 years ago—just a bunch of ‘could be and who knows’ guesswork. Use common sense: If this land is so ideal and already occupied, where are all the pinesnakes?”
FWS, Scott details, made the critical habitat designation based on soil type and tree species, and not the snake’s presence. “What kind of science is that? Encumber thousands of acres of private acreage based on old sightings? Even scarier, a FWS official told me, ‘Just because we can’t find the pinesnake on that land doesn’t mean it doesn’t exist.’”
“Think of the logic,” Scott adds. “FWS says the Skipper’s private land is
critical habitat—as in the land is so
critical in order for the species to survive—yet, how can the species survive on the Skipper’s land if there are no pinesnakes to begin with?”
The Ghost Frog
The FWS imposition of a critical habitat designation on Skipper’s private acreage, based on a species with no residence on the land, mirrors the surreal, eight-year legal war over an endangered frog in Louisiana.
On May 21, 2011, Edward Poitevent (St. Tammany Parish, located on Louisiana’s northern boot tip) got a call from FWS, declaring approximately 1,500 acres of his timberland (leased to Weyerhaeuser) as prime ground for the Mississippi gopher frog. At the time, the last 100 gopher frogs in existence were in Mississippi, the final remnant of a population that once spread across several Southern states. However, the reclusive, 3” frog hadn’t been seen in Louisiana since 1967, according to the Department of Interior (DOI). Not on Poitevent’s land; not in St. Tammany Parish; and not within Louisiana borders.
After an 8-0 SCOTUS decision in his favor, Edward Poitevent won a benchmark critical habitat designation case against FWS involving a frog possibly seen on his land 50 years in the past. (Photo by Emily Kask, PLF)
Poitevent was stunned. FWS placed his acreage in the crosshairs of critical habitat—even while admitting the land was unsuitable for the frog’s survival.
Facing a restriction on land development, and an estimated $34 million long-term loss in value potential, Poitevent took FWS to court, and emerged eight years later as the victor. After a jolting 8-0 Supreme Court decision (and presumably millions of taxpayer dollars spent in pursuit of Poitevent’s acreage) dismantled the actions of FWS, the agency signed a consent decree on July 3, 2019, removing the critical habitat designation.
FWS’ stance throughout the gopher frog case was striking: Since the frog may have been seen on Poitevent’s land more than 50 years in the past, the acreage would become a center of gopher frog restoration—even though FWS had no legal ability to reintroduce the amphibian. Boiled down, FWS attempted to create a frog haven with no frogs.
Significantly, the gopher frog case was generated by a CBD lawsuit. Noah Greenwald, CBD environmental species director, claims Poitevent was not “enlightened” and cites Poitevent’s lifespan as a trigger for change.
“The dusky gopher frog would go extinct without a critical habitat designation,” Greenwald says, “and it was important to get a designation on his land, even if he was opposed, because Poitevent won’t live forever and the next landowner may be more enlightened regarding one of God’s creatures.”
Jones warns critical habitat designations on private land will continue. “A landowner, Edward Poitevent, just faced what we’re facing now, and this is going to happen again in the future to someone else,” Jones describes. “And in backwards logic, FWS goes after land held in private hands because those same private owners are the ones who conserved the ecosystems to begin with. Our Association insists that FWS use reason, sound science, and properly manage economic impacts—all of which are sorely lacking with the black pinesnake. We’ve voiced our concerns from the beginning and FWS has ignored us, so now we’re forced to take this to the courts.”
Bull’s-eye on Devaluation
For illustration, picture a potential buyer or investor eyeballing two adjacent properties. Each property is identical in acreage, soil type, topography, and water access. One property, however, has a critical habit designation—the other does not. Which property will the prospective buyer purchase? The question answers itself, because only on paper are both properties of equal value.
By law, FWS is required to conduct an economic analysis of any proposed critical habitat. In October 2014,
Screening Analysis of the Likely Economic Impacts of Critical Habitat Designation for the Black Pinesnake was released, and the results are a generalized haze—concluding that an undetermined decrease in land value would be in the cards. “There has been no real appraisal,” Yates says. “FWS doesn’t take the value loss seriously, and just acknowledges some fraction of an estimated $100 million of private property across Alabama and Mississippi will be reduced in value.”
“Regardless of what FWS claims, landowners know critical habitat puts a bull’s-eye on the devaluation of property,” says Scott Jones, president of the Forest Landowners Association, pictured planting trees on his family land in Georgia. (Photo courtesy of FLA)
In reality, Yates argues, the Skipper’s land value will be diminished from multiple critical habitat angles. “It’s pretty plain: One, the FWS designation immediately reduces the value of the ground due to public perception of regulatory burdens. Two, any future development will be severely restricted because any action requiring a federal permit or funding would be subject to FWS consultations, which could limit or prevent herbicide applications, road building, and much, much more. Third, because the land is “occupied” by the pinesnake, any prudent land manager has to act and harvest timber as if the snake is actually there in order to avoid potential civil and even criminal liability.”
A balanced assessment of value loss related to critical habitat designations must account for a heavy regulatory burden, Jones says. “Regardless of what FWS claims, landowners know critical habitat puts a bull’s-eye on the devaluation of property. You lose your rights because you have to consult with the government on any changes. Try taking forestland to farmland after a designation. For FWS to pretend there won’t be major value loss shows a deep lack of understanding of basic land ownership and private property.”
In public meetings prior to the designation, FWS repeatedly assured Skipper and other landowners that restrictions on land use would not be implemented. “I can read the critical habitat rules for myself,” Skipper notes, “and it is chockful of restrictions. We’re at a point in this country where bureaucrats can lie to the public and nobody can do a thing about it. Here’s a restriction: If I alter the habitat or kill a pinesnake, I’m subject to a $50,000 fine and up to one year in prison. Does that sound kinda restrictive?”
Poisoned Well
The Skippers have withdrawn all acreage from the WMA, and have no plans to rejoin. “How can we stay in the WMA and partner with government officials? I have to guess that if we let them stay on our land, they’ll declare protection for other animals that aren’t there either,” Skipper says. “The more they do it—the less useful our land is, and this is a working forest. FWS has put a noose around our production and won’t even admit it.”
(The WMA was overseen by the Alabama Department of Conservation and Natural Resources (ADCNR). Skipper contends ADCNR “did everything within their power” to mitigate the critical habitat designation on Unit 7 and Unit 8, but FWS officials out of Jackson, Miss., refused to remove any acres.)
The logical outcome of questionable critical habitat designations, Jones asserts, is public loss of confidence in FWS. Translation: Jones believes FWS has poisoned the public well. “Maybe the greatest shame is that private forest landowners are not only good stewards, but they’re willing participants in accomplishing conservation goals. Now, what happens when FWS needs legitimate data on a turtle or salamander, and they’re looking to find out if any of these creatures have been seen on private property? What landowner is going to come rushing forward with the info or provide access?”
Following the Skipper/FLA complaint filing, PLF asked the court to set aside the habitat designation and remand the designation back to FWS. A hearing was held April 20, 2022, in Mobile, Ala. The case has been submitted and awaits a court decision. “We want them to go through the process again,” Yates details, “and this time follow the law.”
Specifically, PLF has presented a three-tier legal argument. First, whether a single isolated sighting of a species justifies “occupied” status. Second, whether FWS performed a deficient economic analysis. (According to statue, if the costs of a critical habitat designation outweigh the benefits, FWS must consider removing the designation.) Third, whether FWS has breached the Regulatory Flexibility Act, which requires additional cost analysis to ensure agency decisions don’t injure small businesses.
Helluva Beating
The black pinesnake impasse is a front-and-center example of what can develop when communication between a government agency and private citizens breaks down or is never established. “The Skippers opened their gate to preservation, conservation, and public hunting, and the gate swung back and hit the family,”
Jones concludes. “This is rulemaking in a vacuum with no mind to unintended consequences. Regulation without reason, good science, and recognition of property rights is a danger, and people need to recognize that what has happened to the Skippers can happen to any landowner.”
“If you want to train a bird dog to a good habit, you don’t beat the hell out of him,” Skipper adds. “On our land, my family’s attitude has always been, ‘Do the right thing and everything will be fine.’ Didn’t work with FWS.”