How far can the government reach across private land? Far enough for federal regulators to stick a “critical habitat” label on private property for an endangered species that does not even live in the designated area? After a seven-year legal saga spurred by a phantom frog, the questions will be answered soon by nine black robes.
The Supreme Court has decided to address Weyerhaeuser v. U.S. Fish and Wildlife Service and determine if the government can aim at private land anywhere in the United States and pull the Endangered Species Act (ESA) trigger, regardless of owner protest and absence of the targeted species. SCOTUS will weigh the actions of federal bureaucrats in a bizarre case centered on land belonging to Louisiana native Edward Poitevent of St. Tammany Parish.
In the thickly layered history of private landowners battling the bounds of governmental regulation, Poitevent’s chapter raises fundamental questions about individual rights and federal authority. In September 2011, the U.S. Fish and Wildlife Service (FWS) published a proposed critical habitat rule for the dusky gopher frog with a bull's-eye on 1,500 acres of Poitevent’s tree farm land (leased by Weyerhaeuser), located at the tip of Louisiana’s boot. With the flick of a FWS pen, the government didn’t have to pay for the acreage, yet Poitevent could never freely develop his own land. (FWS and the Department of Justice both declined comment for this story.)
The dusky gopher frog hasn’t been seen in Louisiana since 1967, according to the Department of Interior. Not on Poitevent’s land; not in St. Tammany Parish; and not anywhere in the entire state. However, several Louisiana historical records confirm that the dusky gopher frog may have been on Poitevent’s land prior to the 1960s.
For more detail on Poitevent’s story, see: Private Property Rights Collide With Invisible Frog
FWS officials have consistently claimed critical habitat designation on private land doesn’t stop development or hinder business. Kicking hard against the designation and an estimated $34-million loss, Poitevent says FWS claims are baseless: “Who believes that? Who wants to buy land and try to build on critical habitat ground dealing with EPA, Corps of Engineers, wetlands permits, and endangered species? The FWS handbook on how to get FWS' OK to do anything with our land is a whopping 350 pages long. It's nothing more than a roadmap written by unelected and unaccountable bureaucrats for how they get to tell you, 'No.'”
“FWS claims they work with landowners to allow development, but that's a ludicrous statement—the whole point of critical habitat designation is to take it out of commerce so that some species can live there,” Poitevent continues. “Yet, here, the FWS has taken my land—and refuses to pay us a dime for it—to 'save' a nonexistent frog that that doesn’t live there, cannot live there, and will never live there.”
On Jan. 22, SCOTUS agreed to hear Poitevent’s ESA challenge. “Now that the Supreme Court has agreed to hear this case—and with apologies to Ross Perot—I am hopeful we can soon say the ‘giant sucking sound’ you will hear when the Court reverses the FWS' ridiculous habitat decision is the sound of one part of the D.C. regulatory swamp circling the drain,” Poitevent adds.
The Pacific Legal Foundation (PLF) represents Poitevent, and attorney Mark Miller says the justices’ acceptance is a positive sign. “It suggests the Court recognizes how far-reaching the FWS’ decision to declare the 1,500 acres of private property in Louisiana critical habitat is. The frog does not live there, has not been seen there in over 50 years, and could not live there without substantial change to the property. Therefore, we believe the government overreached when it said it could declare the property critical habitat.”
SCOTUS is expected to conduct briefing within the next few months and set the case for oral argument during the 2018 term, possibly in October, according to Miller: “The grant in this case does not tell us that the justices agree, but it does suggest they realize how important the issue is—not just for our clients, not just for Weyerhaeuser, but for all landowners in the United States.”