Appellate court to hear constitutional challenge to ESA

May 28, 2015 | By REED HOPPER

On June 2, we will be holding a D.C. event to discuss with lawmakers and others our landmark PETPO case that is now pending in the Tenth Circuit after a Utah District Court held that federal regulation of local prairie dogs exceeds constitutional authority under the Endangered Species Act.  Coincidentally, that same day I will be attending oral argument in Austin, in the Fifth Circuit, where we are arguing that the designation of critical habitat on private land, that has no connection to the endangered dusky gopher frog, is also an unconstitutional exercise of federal authority under the ESA.

The case is Markle v U.S. Fish and Wildlife Service and involves the designation of more than 1500 acres of purportedly “potential” habitat that the government estimates could cost the landowners over $33.9 million in lost profits.  The government admits the property is not usable as habitat and may never be suitable for conservation of the species.  But the government designated the property as critical habitat in the hope that it might someday become available.  To our knowledge, this is the farthest the Fish and Wildlife Service has ever gone in setting aside private property for conservation based entirely on speculation that the property could become habitat for listed species someday in the distant future.  If allowed to continue, the federal government could designate any property as potential habitat subject to federal control.  And that is no small thing.  Land use on critical habitat is subject to a virtual veto power by the federal government.  This is a dangerous precedent that can put anyone’s property at risk of federal control thereby undermining individual liberty.  Hopefully, the appellate court will hold the line on this abuse of federal power.