December 3, 2018

Advocate’s missed mark on gopher frog case

By Mark Miller Senior Attorney

Originally published by The Advocate, December 3, 2018.

The Advocate’s Nov. 28 analysis of the recent unanimous Supreme Court decision in the St. Tammany Parrish private property rights dispute comes close but misses the mark. The editors, unfortunately, put the emphasis on a frog that does not even live in Louisiana while failing to properly acknowledge the property rights of the Louisianans who do.

We all agree that endangered species deserve protection. That’s why we have the Endangered Species Act. But not only is all not “lost” for the dusky gopher frog following the Supreme Court’s decision—in fact, nothing has been lost at all. The frog does not live in Louisiana and cannot live in Louisiana without dramatic changes to the property.

Meanwhile, efforts to conserve the frog continue apace in Mississippi, where the federal government has properly designated land as critical habitat for the frog. That designation is proper because the land designated in Mississippi actually meets the common-sense definition of “habitat” — that is, a place where the species can live and thrive.

Thus, the proper application of the law results in a net gain for the frog. But improperly applying the law in Louisiana, as the government is still trying to do, would result in a catastrophic loss to the property owners.

The problem is that the conditions of the Poitevent 1,544 acres simply do not support the frog’s survival, according to the federal government’s own assessment. If land will not support a species without dramatic change, then how can that land be a “habitat” for the species, let alone a critical habitat, as the Endangered Species Act requires to justify setting aside land for a species?

It can’t.

Otherwise, it would make just as much sense to designate land in Alaska ‘critical habitat’ for the frog, and then change the conditions in Alaska sufficiently to conserve the frog, just as the government is demanding to be done here in Louisiana. What’s the difference? That is the very question Chief Justice John Roberts, the author of the Supreme Court’s opinion in the case, asked during oral argument. The government lawyer had no answer for why Alaska was different from Louisiana in regards to the frog and what its habitat is.

The fact that the government could put no limitation on its definition of “habitat” reflects the failure to grasp both the plain meaning of the Endangered Species Act and the meaning of private property rights as enshrined in the Fifth Amendment, which prohibits government taking of property without just compensation to the owner. In this case, the government’s actions would have done nothing to protect the species in question, while failing to respect the property owner’s Constitutional rights. The government gets it wrong coming and going.

The government should stick to existing legal means to protect species that are already part of the Endangered Species Act, and give up on this illegal, misguided effort to commandeer the Poitevent family’s land on behalf of a frog that can’t even live there.

Mark Miller attorney for Edward B. Poitevent II, Palm Beach Gardens, Florida

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Weyerhaeuser/Markle v. U.S. Fish and Wildlife Service

As a child, Edward Poitevent’s family cut down Christmas trees on their lumber-rich land in Louisiana, and one day he’d like to leave the property to his own children. But federal bureaucrats jeopardized his legacy when they declared nearly 1,500 acres of his family’s private land as a critical habitat for the dusky gopher frog—a species not seen in the state for more than 50 years. Neither the Endangered Species Act nor congressional intent justifies such government-sanctioned property theft. Represented by PLF, Edward sued to defend his constitutionally protected property rights. In a unanimous decision announced November 27, 2018, the High Court agreed with Edward that the Fish and Wildlife Service overstepped its authority with the critical habitat designation and the Court remanded the case so that the lower court could consider Edward’s arguments anew.

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