February 7, 2013

Private property or public preserve — where do you draw the line?

By M. Reed Hopper Senior Attorney

Government overreaching has become common place in Washington, D.C., especially under the Endangered Species Act which turns 40 years old this year, along with Pacific Legal Foundation.  For years, PLF has taken the lead in challenging illegal agency actions that undermine individual rights in the name of species protections.  But few compare with the U.S. Fish and Wildlife Service’s designation of “critical habitat” for the dusky gopher frog.  In utter disregard for the law, the Service set aside more than 1,500 acres of private land that the government openly admits is wholly unsuitable for gopher frog habitat.  It is hard to conceive of a more blatant abuse of the Act.  Today, PLF filed a complaint in federal court challenging the designation on regulatory, statutory and constitutional grounds.

The Endangered Species Act requires the U.S. Fish and Wildlife Service to designate “critical habitat” for protected species.  But the Act expressly limits “critical habitat” to those areas that contain the physical and biological features “essential to the conservation of the species.”  The Service has decided, however, that areas unoccupied and manifestly unusable as habitat may be included.

On June 12, 2012, the Service designated “critical habitat” for the dusky gopher frog (formerly the Mississippi gopher frog), including 1,544 acres of private land in St. Tammany Parish, Louisiana.  But here’s the kicker–the Service admits this area, which is almost entirely family owned, is totally unusable as habitat and may never become usable habitat.  Among other things, the entire 1,544 acres are void of the physical and biological features the Service determined must be present for conservation of the species.  Among other things, to become usable habitat, the private landowners would have to subject this forested area to regular controlled burns, causing air pollution and driving away other species.  The owners have stated they have no intention of doing this and the Service acknowledged, as it must, that it cannot compel them to do so.  In other words, the Service designated 1,544 acres of private land as “critical habitat” based on the speculative hope that the area may someday become not only usable, but “essential,” habitat.  Under this distorted interpretation of the law, the Service could designate any area as “critical habitat” hoping for a change in the indefinite future.  This is why PLF filed its suit today challenging this illegal designation.

A detailed Q&A about this designation can be read here in a previous post.

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