October 1, 2012

Washington epidemic!

By M. Reed Hopper Senior Attorney

Government overreaching has become epidemic in Washington, D.C.  Consider the designation of “critical habitat” for the Dusky Gopher Frog in Louisiana.

The Endangered Species Act requires the U.S. Fish and Wildlife Service to designate “critical habitat” for protected species.  The Act expressly limits “critical habitat” to those areas “essential to the conservation of the species.”  But with the Dusky Gopher Frog, the Service has decided that areas unoccupied and manifestly unusable as habitat may be included.  This is a classic case of government overreaching that PLF is ready to challenge.

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.  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 ESA, the Service could designate any area as “critical habitat” hoping for a change in the indefinite future.

But that’s not all.  The Service calculated that the economic impact of designating this unusable area as “critical habitat” could cost the owners up to $34 million.  To add insult to injury, the Service absurdly proclaimed  the “economic analysis did not identify any disproportionate costs that are likely to result from the designation,” What! Imposing a $34 million burden primarily on a single family, the Poitevent family, when the area provides no benefit to the species, is not a disproportionate cost?  Such callous disregard for the consequences of agency decisionmaking should not be tolerated in an orderly society.  Therefore, PLF has filed a Notice of Intent to sue the Service if it does not exclude this area from the “critical habitat” designation within 60 days.  PLF is representing Markle Interests, Inc., part owner of the disputed 1,544 acre area.

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

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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 and on October 1st, 2018, he will join another affected property owner, Weyerhaeuser Company, at the U.S. Supreme Court to defend their constitutionally protected property rights.

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