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Since its creation in 1977, MSLF has been one of the nation's leading centers fighting to ensure that property owners are accorded all rights guaranteed by the Constitution. MSLF defends property owners who cannot afford to fight back against government lawyers and environmental groups to protect their property rights. MSLF's litigation has helped to ensure the preservation of one of America's most valuable and valued freedoms--the right to own and use property.

Markle Interests LLC v. U.S. Fish & Wildlife Service

Why We Fight:

The U.S. Fish & Wildlife Service has no authority under the Endangered Species Act to regulate private property where no illegal “takes” of listed species have occurred and where no destruction of a species’ habitat will occur.

Summary:

The federal government listed the dusky gopher frog as endangered, proposed to designate critical habitat for the frog in three Mississippi counties, and proposed to include, as “potential habitat,” 1,544 acres of private land in Louisiana that is unoccupied by the frog, where it has not been sighted for over 50 years, and that lacks the characteristics necessary to sustain it.

Legal Question:

Whether Congress may designate uninhabitable, unoccupied private property as “critical habitat” for a protected species?

Petitioners

Markle Interests, LLC, represented by Pacific Legal Foundation (PLF); P&F Lumber Company 2000, LLC; and PF Monroe Properties

Respondent

U.S. Fish and Wildlife Service

Amicus Curiae:

Mountain States Legal Foundation (MSLF)

Court:

Supreme Court of the United States

Completion of briefing and a decision by the Supreme Court on whether to hear the case

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. 

No Status Updates
  • Western Legal Outfit Joins Fight Against Fed’s Seizure of Private Land in Louisiana

    Aug 11, 2017
    A western, nonprofit, public-interest legal foundation with decades of experience fighting abuses of the Endangered Species Act (ESA) today joined a nationally significant lawsuit to defend the right of Louisiana landowners not to have their land seized by federal agencies as “habitat” for listed species, even though the species is not found on the property nor is the land hospitable to it.

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