In 2001, the FWS listed the dusky gopher frog as endangered under the ESA and in 2010 proposed to designate critical habitat for the frog in three Mississippi counties. Later, the FWS modified its proposal to include “potential habitat in Louisiana,” that is, 1,544 acres of private land unoccupied by the frog, where it has not been sighted for more than 50 years, and which lacks the biological and physical characteristics necessary to sustain it. Nonetheless, in the final rule, the agency designated the Louisiana land “critical habitat,” claiming the presence of just one of three biological features necessary to constitute habitat—“ephemeral ponds”—all the while estimating that designation will cost landowners up to $33.9 million.
Landowners challenged the designation because the land is not habitable by the species and the FWS does not have Commerce Clause authority to regulate private land without a “connection to the protected species other than through the critical habitat designation itself.” In 2014, a federal district court in Louisiana ruled for the FWS; in 2016, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, by 2-1, upheld the ruling. A petition for rehearing en banc was denied over the strenuous dissent of six judges and an amicus curiae brief by 15 states.
On August 11, 2017, MSLF filed a friend of the court brief urging the Supreme Court of the United States to hear the case. MSLF maintains that the action of the federal government, ostensibly pursuant to its authority under the ESA, is unprecedented given that the agency asserts its authority to regulate private property where no illegal “takes” of listed species have occurred and where no destruction of a species’ habitat will occur.