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Supreme Court Agrees to Review Fed’s Seizure of Private Land in Louisiana

Jan 22, 2018 | by William Perry Pendley

Mountain States Legal Foundation welcomes decision in which it filed a friend of the court brief in support of landowners besieged by abuses of the Endangered Species Act.

DENVER, CO.  A western, nonprofit, public-interest legal foundation with decades of experience fighting abuses of the Endangered Species Act (ESA) today hailed the decision of the Supreme Court of the United States to decide whether Louisiana landowners have the right 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.  Mountain States Legal Foundation (MSLF) welcomed today’s announcement in the case in which it filed a friend of the court brief.  Landowners in the Pelican State challenged a decision by the U.S. Fish & Wildlife Service (FWS) to designate their property as future habitat for an endangered frog that is not anywhere to be found on their land or nearby federal land.  MSLF argued that the FWS’s action, ostensibly pursuant to its authority under the ESA, is unprecedented given that the agency asserts its authority to regulate private property where none of the listed species live and where no destruction of a species’ habitat will occur.

“Any school child knows that, to have ‘critical habitat,’ one must first have habitat, but federal bureaucrats do not understand that,” said William Perry Pendley MSLF president.  “That the Court will review the case is the best news in decades.”

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 $34 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.  Nonetheless, in 2014, a federal district court in Louisiana ruled for the FWS.  Two year later, 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.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  Markle Interests LLC v. U.S. Fish & Wildlife Service

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