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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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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