Gopher frog case to the Supreme Court

February 14, 2017 | By REED HOPPER

Four years ago, PLF filed suit in federal court on behalf of landowners, Markle Interests, LLC., whose property was designated “critical habitat” by the U.S. Fish and Wildlife Service. Under the Endangered Species Act, “critical habitat” includes only those areas “essential to the conservation of the species.” But in a bewildering display of creative rule-making, that is becoming all too common among federal bureaucrats, agency officials decided 1500 acres of private land should be set aside for the protection of the dusky gopher frog although the land is wholly unsuitable as habitat. It is unoccupied, inaccessible, and unusable by the gopher frog. By any definition, the land provides no benefit to the frog whatsoever. But this did not stop the Service from baldy declaring the preservation of the site outweighed the cost to the landowners of $34 million in lost revenue.

A Louisiana District Court judge was “troubled” by the agency decision to designate nonhabitat as “critical habitat,” and the drastic impact on the landowners, but felt “compelled” to rule for the government on such a technical matter. On appeal in the Fifth Circuit, two judges on a three-judge panel also deferred to the government without reconciling the decision with the language of the Act to limit “critical habitat” to essential areas. One judge issued a dissenting opinion recognizing that if the government could regulate uninhabitable areas as “critical habitat,” the agency could regulate any area in the country, without limit. The judge argued this defied both logic and the law.

We sought review of the panel decision by the entire Fifth Circuit court in an en banc rehearing, but yesterday the court denied our petition for review on an 8 to 6 vote. In an unusual dissent running to 34 pages, the 6 judges who favored review excoriated the court for allowing the panel decision to stand calling it, rather colorfully, an “execrable” misinterpretation of the statutory text and contrary to Supreme Court precedent.

These spirited dissents essentially make our case and provide a firm basis for pursuing review of the agency decision in the Supreme Court of the United States. Our petition for review in that court will be due in about 90 days. In the Fifth Circuit, we were supported by numerous States and industry parties and expect similar support in the High Court.