October 2, 2018

Eight justices consider a shy frog & the meaning of habitat

By Mark Miller Senior Attorney

This week to start its new term the Supreme Court heard argument on Pacific Legal Foundation’s case popularly-known as Weyerhaeuser Co. v. U.S. Fish & Wildlife Service. I say popularly-known because although the case involves the large timber company Weyerhaeuser, at bottom the case speaks to how our client Edward Poitevent and his family tree farm will be allowed (more on that to come) to use Louisiana property they have held for close to 150 years.

This case, like so many Pacific Legal Foundation cases, is about unbridled power. Unbridled power wielded by the federal government and opposed by ordinary Americans like Edward and the lawyers of PLF. Pursuant to the Endangered Species Act, nearly twenty years ago the federal Fish & Wildlife Service determined that the Mississippi Gopher Frog was endangered – about 100 remained, all in the State of Mississippi. When the government designated land to be cordoned off from private use in order to help bring the frog back from near extinction, the government concluded that our client’s property – 50 miles away from the nearest living frog, across rivers, highways, and a state line, and a place where no such frog had been seen in 50 years – fit the bill. Remarkably, the federal government made that designation of our client’s property even though it conceded the elements essential for the frog to be brought back from endangered status did not, and do not, exist on the property. Someone would have to dramatically change the property – terraform it, if you will – for the frog to ever survive there. They even changed the name of the frog – from Mississippi Gopher Frog to Dusky Gopher Frog – to work around the fact that it would make little sense to designate land in Louisiana for a frog that hails exclusively from, and is thus named after, the great state of Mississippi.

Our client Edward has nothing against the frog – no one wants to see the frog disappear – but Edward recognizes common sense: if the frog cannot live on his property, then it won’t save the frog to declare his property critical habitat for the frog. How can his property be critical habitat if the property is not even habitat for the frog at all? But it will destroy Edward’s ability to use his private property should the designation be allowed: it won’t help the frog but it will hurt this private property owner. So it’s a tremendously dumb idea, right? Not to the feds. This kind of common sense eludes the federal government. That same common sense required Pacific Legal Foundation and Edward to take his case all the way to the Supreme Court of the United States in search of five justices who would enforce the common sense of this situation.

Weyerhaeuser leases the Poitevent property, owns a small piece of the land designated critical habitat, and thus has a stake in the matter as well. Like PLF, Weyerhaeuser opposes this federal land grab as the kind of federal conduct that neither Congress in writing the Endangered Species Act nor the Founding Fathers in writing the Constitution would have ever considered justifiable or even within the powers of the federal government at all.

President Ronald Reagan once said: “[M]an is not free unless government is limited. There’s a clear cause and effect here that is as neat and predictable as a law of physics: As government expands, liberty contracts.” In this case, the federal government has spent the last two decades attempting to expand its power in order to control land that is not within its authority to control for a shy frog that has no interest in the land at all. The officials of the Fish & Wildlife Service think they have the unbridled power to do this despite the facts and the law standing against them. Yesterday the justices of the Supreme Court carefully examined this attempt to expand federal government power. Their questioning conveyed justices grappling with what was done here, but when all is said and done the justices should be expected to come down on the side of liberty, Edward Poitevent, and Weyerhaeuser Company.

Any Court that considers itself the greatest protector of liberty can do nothing else.

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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 and on October 1st, 2018, he will join another affected property owner, Weyerhaeuser Company, at the U.S. Supreme Court to defend their constitutionally protected property rights. Oral argument held at U.S. Supreme Court on October 1, 2018.

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