2 weeks ago

Government extremism is no virtue

By M. Reed Hopper Senior Attorney

Vigorous representation of a client is the hallmark of good lawyering. But when it goes too far, it’s anything but praiseworthy.  Such is the case of In re Gunnison sage-grouse wherein the Department of Justice recently filed an over-the-top brief in support of the U. S. Fish and Wildlife Service that designated thousands of acres of non-habitat as “critical habitat” in the States of Utah and Colorado. The Endangered Species Act defines “critical habitat” as those areas “essential to the conservation of a species.” But, in its brief, the DOJ argues absurdly that “habitat” includes areas that cannot be used as habitat and “critical habitat” may include areas that do not have the characteristics essential to species conservation. In other words, according to the government, “habitat” means non-habitat and “essential” means non-essential. This extreme view is a blatant violation of statutory and constitutional law.

For its overly-broad interpretation of the Endangered Species Act, the government relies on the Markle case wherein the Fish and Wildlife Service set aside 1500 acres of private property as “critical habitat” for the Dusky Gopher Frog that the Service admits is unsuitable as habitat and provides no conservation benefit to the species, but would cost the landowners $34M in lost revenue. The Fifth Circuit Court of Appeals upheld this unprecedented application of the act, but the government’s reliance on the case is premature. We have petitioned the U.S. Supreme Court to hear the case and reverse the Fifth Circuit decision. With the support of six judges who dissented from the Fifth Circuit decision, and many amici, including 18 states, we argue the designation of unsuitable areas as protected habitat is illogical, contrary to the plain text of the Endangered Species Act, and exceeds the constitutional power of Congress to regulate interstate commerce on which the act is based.

We filed an amicus brief in the Gunnison sage-grouse case to advise the court that the issue raised in that case–whether the government may designate non-habitat as “critical habitat”–is pending in the Supreme Court and a decision in Markle will dictate the outcome in the sage-grouse case. The government’s brief in opposition to our petition for review in the Supreme Court is due next Monday.

Although the Trump administration has made some laudatory inroads in curtailing regulatory abuse, it is apparent from the DOJ’s brief in the sage-grouse case that the new administration is not much different than the old administration in pushing the statutory and constitutional limits of federal power under the Endangered Species Act. We expected more from the change in guard. The matter is now in the hands of the High Court.

 

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Markle v. U.S. Fish and Wildlife Service

The federally-protected dusky gopher frog lives exclusively in a small area of Mississippi, in designated critical habitat. However, the government designated over 1500 acres of privately-owned land in Louisiana as “critical habitat,” even while acknowledging that the frog does not, and cannot, live there.

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