June 30, 2016

Loss in gopher frog critical habitat challenge

By Damien M. Schiff Senior Attorney

This morning, the Fifth Circuit Court of Appeals issued an adverse split decision in Markle Interests v. U.S. Fish & Wildlife Service.  The case concerns a challenge to the Service’s designation of our client’s property as critical habitat for the dusky gopher frog.  What makes the Fish and Wildlife Service’s actions here a particularly outrageous example of Endangered Species Act abuse is that our client’s land (i) is not occupied by the frog, (ii) does not contain the essential habitat requirements for the frog, and (iii) likely never will be habitable for the frog.  Even more remarkable, the Service does not dispute this.

Nevertheless, the Fifth Circuit ruled 2-1 that our client’s land may be designated “essential” habitat for the frog.*  In reaching that result, the court summarily dismissed the serious abuse-of-power questions that the Service’s limitless interpretation presents.  Under the agency’s approach, any piece of land can be considered critical habitat because it could, in theory, be altered or managed in a way that would make it habitable.  The court really had no response to this point other than to say, “that’s not this case.”  In other words, because our client’s property contains “ephemeral ponds” which purportedly are not found elsewhere, and because the Service relied on those ponds’ presence to designate our client’s property as critical habitat, the agency is not actually contending that it can designate just any area as critical habitat.

In addition to this statutory claim, we also challenged the designation under the Commerce Clause.  The court rejected that argument too, largely relying on a prior decision holding that the Endangered Species Act is a market regulatory scheme.  That determination makes the government’s case much easier; indeed, at that point the court need only determine that critical habitat designations are “essential” (there’s that word again) to the larger regulatory scheme.  Per the Fifth Circuit, they are.

Also, we challenged the Service’s failure to exclude our client’s property from critical habitat on account of the disproportionate economic impacts that our client will suffer.  That is irrelevant, says the court, because the Service’s decision is committed to the agency’s absolute, unreviewable discretion.  (Readers of The Liberty Blog will know that we are challenging that point in the green sturgeon case).

Finally, the court held that critical habitat designations are not subject to the National Environmental Policy Act.  That’s an odd conclusion, given that (i) NEPA applies to federal actions that will cause a change in the environment, and (ii) the court upheld the critical habitat designation here based on the Service’s conclusion that future physical changes to our client’s property will make the habitat usable.

All told, a disappointing and unconvincing opinion.

*The court afforded Chevron deference to the Service’s interpretation of the statutory term “essential.”  That’s a little odd.  To be sure, if the Service had promulgated a general regulation setting forth how it interprets the general statutory term “essential,” which would then bind the agency and the public for all designations, one could see how that interpretation might merit deference.  But here the Service did no such thing. It merely interpreted “essential” as applied to the gopher frog.  Not even the Service would argue that its interpretation of “essential” in the gopher frog’s habitat designation now binds it with respect to other designations.  But if it doesn’t, then is the agency really promulgating a regulation as opposed simply to enforcing law to fact?

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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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