August 15, 2017

PLF’s Markle critical habitat case draws broad amicus support

By Mark Miller Senior Attorney
Ed Poitevent, one of the landowners at the mercy of a frog who doesn’t live anywhere near his property, and never will.

This week, business groups, associations, think tanks, and government entities all filed “friends of the court” amicus briefs supporting PLF in its high-profile Supreme Court case for property owners’ rights, Markle v. U.S. Fish and Wildlife Service. All thirteen of the amicus briefs, representing 19 different organizations and 18 different states led by the State of Alabama, urge the court to grant review of the case and then hold that property cannot be deemed “critical habitat” for an endangered species if the species does not use the property as habitat, and never could use the property as habitat barring changes that the property owner will never make.

The list of “friends of the court” supporting PLF and its clients include:

California Cattlemen’s Association, California Building Industry Association, and Building Industry Legal Defense Foundation;

Cato Institute;

U.S. Chamber of Commerce;

Center for Constitutional Jurisprudence;

Alabama and 17 additional states;

Energy and Wildlife Action Coalition;

Mountain States Legal Foundation;

National Association of Homebuilders and American Forest Resource Council;

San Juan County, Utah;

Southeastern Legal Foundation;

Coalition for a Sustainable Delta, San Luis and Delta-Mendota Water Authority, and Western Growers Association;

Washington Legal Foundation;

and

The American Farm Bureau Federation, the National Alliance of Forest Owners, and the National Mining Association.

In this potentially precedent-setting case, PLF attorneys represent, free of charge, Markle Interests, LLC, along with P&F Lumber Company 2000, LLC, and PF Monroe Properties, LLC, the owners of much of the more than 1,500 acres that the federal government has labeled “critical habitat” for the dusky gopher frog— a frog that doesn’t exist on their property and has not been seen in the area, or even the state of Louisiana, for fifty years. PLF’s petition for certiorari to the Supreme Court comes after the Fifth U.S. Circuit Court of Appeals, ruling en banc, declined to reverse the illegal habitat designation, over the objection of six judges who favored the landowners.

The government will file its brief in opposition next month, and we expect the Supreme Court to consider the case for review in October. The thirteen amicus briefs filed in favor of granting review should certainly weigh in favor of the Court accepting the case for review on the merits, and we are grateful for all of the support.

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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 to defend his constitutionally protected property rights. In a unanimous decision announced November 27, 2018, the High Court agreed with Edward that the Fish and Wildlife Service overstepped its authority with the critical habitat designation and the Court remanded the case so that the lower court could consider Edward’s arguments anew.

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