August 16, 2016

Fifth Circuit shows interest in gopher frog challenge

By M. Reed Hopper Senior Attorney

Last week we reported that 15 states had filed an amicus brief in support of our petition for rehearing by the entire Fifth Circuit to overturn a panel decision that would authorize federal control of any land in the country in the hopes that it may someday be used as habitat for protected species. In Markle v. U.S. Fish and Wildlife Service the government designated over 1500 acres of private land as “critical habitat” for the dusky gopher frog that the agency admits is unsuitable for habitat. Contrary to all reason, the service declared protecting the area does not create an undue burden on the landowners, although the area is not and cannot be used by gopher frogs and the loss of value to the landowners could exceed 33 million dollars. It’s not surprising, therefore, that the Fifth Circuit has shown an unusual interest in the case by directing the government to respond to our petition for rehearing.  The response is due August 26.  Shortly thereafter we expect the court to rule on our petition.

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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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