August 22, 2014

The Endangered Species Act — a law without limits

By M. Reed Hopper Senior Attorney

The Endangered Species Act (ESA) empowers the federal government to set aside public and private land for the protection of endangered species. Congress inserted a provision in the Act that limits this set aside to “essential” habitat, known as “critical habitat,” and mandates that the government rely only on the best available data and take into consideration the economic impact of designating “critical habitat.” Under the Act, any area may be excluded from “critical habitat” if the impact on the landowner outweighs the benefit to the species. In theory, this provision was expected to protect landowners from overzealous regulation. But it hasn’t worked out that way.

Since the ESA was passed in 1973, federal regulators have expanded their power so much that the U.S. Fish and Wildlife Service has become a defacto zoning board dictating local land and water use across the Nation. The most blatant example of this overreach is the designation of “critical habitat” for the dusky gopher frog that includes more than 1500 acres of private land in St. Tammany Parish, Louisiana, that the Agency admits is currently unoccupied, unsuitable, and inaccessible to the species. In other words, the Agency designated nonhabitat as “critical habitat” subject to pervasive federal regulation. By the Agency’s own estimation, restrictions on the use of the property could cost the landowners as much as $34,000,000. Although this nonhabitat currently provides no benefit to the gopher frog, and may never do so, the Agency perversely determined that the benefits to the species outweighed the impact on the landowners. It is hard to imagine a more irrational decision.

When PLF challenged the designation of this nonhabitat area as “critical habitat” in federal court, the Fish and Wildlife Service argued that it had complete discretion to determine which areas are included as “critical habitat” and that the court had no power to question the agency decision whatever the impact! In effect, the agency claims it has unlimited regulatory authority under the Endangered Species Act which the courts have no power to review.

Today, a federal judge “reluctantly” agreed with this argument and upheld the designation of this unsuitable area as “crictical habitat.” The judge acknowledged the ESA appears to go too far but suggested that is a matter for Congress to address and not the courts. We disagree.  The Courts have the duty to hold the line on runaway government.  PLF will appeal this case to the Fifth Circuit.

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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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