March 12, 2015

Gopher frog case briefed in the Fifth Circuit Court of Appeals

By M. Reed Hopper Senior Attorney

Readers of this blog will remember the case of Markle v. U.S. Fish and Wildlife Service wherein PLF represents the landowners in challenging the designation of1500 acres of private timber land in Louisiana as “critical habitat” for the dusky gopher frog.  Although the land is unsuitable for use by the gopher frog (which resides in Mississippi), because it does not contain the physical and biological characteristics the Service says the frog needs to survive, and designation of the land will cost the landowners up to $33.9 million in lost profits, the Service claims it can regulate the land forever until it becomes accessible and usable for species conservation.  This sets a dangerous precedent that would allow overzealous federal bureaucrats to set aside private land anywhere in the country in the hope that it may someday be used by a protected species.  In its challenge to this federal land grab, PLF argues the agency has gone too far in violation of the express language of the Endangered Species Act, the will of Congress, and the U.S. Constitution.  The case is now pending in the 5th Circuit Court of Appeals where briefing is now complete.  We filed our final brief in the case on Monday and are waiting for the court to set a date for oral argument which should be held in a few months.  This case has been widely followed in the media and should be of concern to everyone who cares about the “rule of law.”  We expect a final decision in the case by the end of the year.

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Markle v. U.S. Fish and Wildlife Service

In 2012, government bureaucrats designated more than 1,500 acres of privately owned land in Louisiana as a “critical habitat” for the federally-protected dusky gopher frog. Regardless of the fact the frog neither lives anywhere in the state nor could live there, the critical habitat designation makes the land off-limits for all of the property owners including Ed Poitevent and his business, Markle Interests, and the Weyerhaeuser Company. On January 22, 2018, the U.S. Supreme Court announced it will hear a challenge to this blatant abuse of the Endangered Species Act. PLF represents the Poitevent family and related businesses, and will represent their interests before the Court.

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