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

Government-sanctioned private land grabs over absent animals are illegal

Cases > Supreme Court Cases > Weyerhaeuser/Markle v. U.S. Fish and Wildlife Service
Case Status: Won: U.S. Supreme Court protects property rights from illegal stretches of existing law

The U.S. Supreme Court opened its fall term on October 1, 2018, with the famous “frog case” out of Louisiana. That’s where federal regulators declared more than 1,500 acres of private land as a critical habitat for the dusky gopher frog—a species not seen in the state for more than 50 years. PLF client Edward Poitevent owns 95 percent of the land in question. He was a party in the case filed by Weyerhaeuser Company, which owns the rest of the property. Neither the Endangered Species Act nor congressional intent justifies such government-sanctioned property theft. In a unanimous decision, the High Court agreed that the Fish and Wildlife Service illegally overstepped its authority with the critical habitat designation.

Edward Poitevent’s family has owned land in Louisiana since the end of the Civil War. The land in St. Tammany Parish is rich in lumber and is the major source of his family’s livelihood. In 1953, after nearly losing their property during the Great Depression, the Poitevent family signed a 90-year lease which has allowed the family to keep the land. And in the 1990s, Weyerhaeuser Company acquired the Poitevents’ lease for its timber operations.

Edward considers the land as much more than an investment. “It’s like a piece of family silver or a treasured piece of art. It’s a family asset and I’d love to be able to pass it on to my own children,” he says.

But in 2012, under cover of the Endangered Species Act, the U.S. Fish and Wildlife Service declared more than 1,500 acres of property owned by Edward and Weyerhaeuser a critical habitat for the dusky gopher frog.

No one in the entire state of Louisiana has spotted the frog in 50 years. The only place the frog is found today is nearly 70 miles away from Edward’s property in Mississippi. In fact, the critter’s official name was the Mississippi Gopher Frog until 2012—right about the time bureaucrats arbitrarily decided that if Edward drastically overhauled his property—at his own expense—the frog might be able to survive in Louisiana too.

By locking down land on behalf of a frog that doesn’t live there, the feds froze an estimated $34 million in economic activity. Nor can Edward use his own land for anything else in the future—a literal death knell to his property rights.

If overreaching government agents can do this to Edward, they can designate any piece of land a critical habitat for practically any animal. No one’s land is safe.

PLF has fought for Edward and his family business, Markle Interests, LLC, since the beginning, when the feds first forced their way onto his property with their bogus designation. On October 1, 2018, Edward took his fight to the U.S. Supreme Court as party to a separate case filed by Weyerhaeuser.

In a unanimous decision announced November 27, 2018, the High Court agreed with Edward that the Fish and Wildlife Service illegally overstepped its authority with the critical habitat designation.

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What’s at stake?

  • The Feds took Edward Poitevent’s land for a frog that doesn’t live in the state and couldn’t survive if put there. If this taking stands, then no one’s land is safe.

Case Timeline

U.S. Supreme Court decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service

November 27, 2018 Download

Reply Brief

August 10, 2018 Download

20 States AC Brief

April 30, 2018 Download

American Exploration AC Merits Brief

April 30, 2018 Download

American Farm Bureau AC Merits Brief

April 30, 2018 Download

Building Industry Legal Def. Fdn. AC Merits Brief

April 30, 2018 Download

Cato Institute AC Merits Brief

April 30, 2018 Download

Cause of Action Institute AC Merits Brief

April 30, 2018 Download

Energy and Wildlife Action Coalition AC Merits Brief

April 30, 2018 Download

National Assoc. of Home Builders AC Merits Brief

April 30, 2018 Download

National Conference of State Legislatures AC Merits Brief

April 30, 2018 Download

National Federation of Independent Business AC Merits Brief

April 30, 2018 Download

San Juan County AC Merits Brief

April 30, 2018 Download

USA Commerce AC Brief

April 30, 2018 Download

Washington Legal Fdn AC Merits Brief

April 30, 2018 Download

Center for Constitutional Jurisprudence AC Merits Brief

April 27, 2018 Download

Southeastern Legal Foundation AC Merits Brief

April 27, 2018 Download

St. Tammany Parish Govt AC Merits Brief

April 27, 2018 Download

Wyoming Stock Growers Assoc AC Merits Brief

April 27, 2018 Download

Sustainable Delta AC Merits Brief

April 26, 2018 Download

Merits Brief in Support of Petitioners - Weyerhaeuser

April 24, 2018 Download

Petitioners' Reply Brief

November 21, 2017 Download

California Cattlemen's Association AC Brief

August 17, 2017 Download

Chamber of Commerce AC Brief

August 15, 2017 Download

Southeastern Legal Foundation AC Brief

August 14, 2017 Download

American Farm Bureau AC Brief

August 14, 2017 Download

Cato Institute AC Brief

August 14, 2017 Download

Eighteen States' AC Brief

August 14, 2017 Download

Energy and Wildlife Action Coalition AC Brief

August 14, 2017 Download

National Association of Home Builders AC Brief

August 14, 2017 Download

Washington Legal Foundation AC Brief

August 14, 2017 Download

Mountain States Legal Foundation AC Brief

August 12, 2017 Download

San Juan County AC Brief

August 12, 2017 Download

Constitutional Jurisprudence AC Brief

August 11, 2017 Download

Petition for Writ of Certiorari

July 12, 2017 Download

Dissent from Denial of Rehearing

February 03, 2017 Download

Fifteen States' AC Brief

August 09, 2016 Download

Petition for Rehearing En Banc

July 29, 2016 Download

Opinion by the Fifth District Court of Appeals

June 30, 2016 Download

Joint Appellants' Reply Brief

June 30, 2016 Download

Federal Appellees' Response Brief

February 04, 2015 Download

Intervenor-Appellees' Response Brief

January 05, 2015 Download

Amicus Brief

December 18, 2014 Download

Joint Appellants' Opening Brief

December 03, 2014 Download

Plaintiff's Notice of Appeal

August 26, 2014 Download

Order on Cross-Motions for Summary Judgment

August 22, 2014 Download

Sustainable Delta AC Brief

August 11, 2014 Download

Intervenor-Defendants' Reply in Support of Cross-Summary Judgment

June 30, 2014 Download

Defendants' Reply in Support of Cross-Summary Judgment

June 16, 2014 Download

Plaintiff's Opposition and Reply to Summary Judgment Motions

May 01, 2014 Download

Intervenor-Defendants' Cross-Summary Judgement

March 10, 2014 Download

Defendants' Cross-Summary Judgement

February 21, 2014 Download

Motion for Summary Judgement

September 12, 2013 Download

Complaint

February 07, 2013 Download

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