The Obama era tradition of bureaucratic overreach is alive and well in the Fish and Wildlife Service. Using an endangered frog, the Fish and Wildlife Service is attempting to dictate how private landowners use their land.

The saga of the dusky gopher frog is lengthy, but one perfectly illustrative of federal government overreach into the rights of the private citizenry.

Protecting endangered species is part of the function of the U.S. Fish and Wildlife Service, but a recent string of court decisions, based on a classic sue-and-settle case, has given the agency virtually unlimited power. And it’s all thanks to a frog.

The dusky gopher frog (previously known as Mississippi Gopher Frog) was designated as endangered in 2001 as a result of a settlement of litigation brought by the Center for Biological Diversity. There were only 100 adult frogs known to exist in the wild. In 2007, the Center for Biological Diversity and Friends of Mississippi Public Lands filed against the Fish and Wildlife Service to designate critical habitat for the frog, resulting in a settlement where the Service was to submit a rule designating critical habitat. That rule came in 2010, designating 1,957 acres in Mississippi as critical habitat for the frog.

Then, one year later, the Fish and Wildlife Service stripped the critical habitat, expanding it to 6,477 acres—stretching across two states, including four counties in Mississippi and one parish in Louisiana.

If at this point you’re reading with furrowed brow, you’re not alone. You see, the frog hadn’t been seen in Louisiana since 1965. Since that time, it has only been spotted in Mississippi. Nonetheless, the 5th Circuit upheld 1,544 acres in Louisiana as “critical habitat” essential for the preservation of the species— despite the fact that this area (described as “Unit 1”) satisfied none of the criteria expected of the frog’s habitat.

This area lacked small, isolated “ephemeral ponds” embedded in open canopy forest, which were essential for breeding. It also lacked open canopy forest close to breeding ponds but upland to serve as non-breeding habitat, maintained by fires frequent enough to support an open canopy and open herbaceous ground cover. And finally, it lacked upland habitat connecting breeding and non-breeding grounds to allow movement—again with abundant native herbaceous species of groundcover produced by frequent fires.

The land is in no way qualified to serve as an effective “critical habitat” for the frog, and yet the federal government is hellbent on swiping it up anyway.

Rather than move on to lands better suited for the frog, the Fish and Wildlife service is requiring landowners to make the land habitable for the frog.

Naturally, the landowners are refusing to cede their unqualified land to a frog without a fight. So they’ve filed a petition for writ of certiorari (included at end of post). Weyerhaeuser Company filed one petition, and Markle Interests, LLC, P&F Lumber Company 2000, and PF Monroe Properties, LLC in another petition. They own or control all the land at issue.

In the petition, they’ve asked two questions:

“1. Whether the Service’s designation of a portion of petitioners’ land as critical habitat—land that the frog previously occupied, and that continues to contain rare ephemeral ponds associated with the frog’s breeding habitat—was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

2. Whether the court of appeals properly declined to review the Service’s discretionary decision not to exclude petitioners’ land from the designation of critical habitat on grounds of economic impact.”

The Fish and Wildlife Service issued a cost-benefit analysis of the economic impact of the designation in 2012 as required by law where they laid out three options:

Option 1: The petitioners could continue forestry operations, avoiding wetlands on the property, and, assuming that all else remained unchanged and that FWS demands no Section 7 consultations, the cost to the landowners would be minimal.

Sounds reasonable enough in theory, but is problematic in practice. A number of natural resources would remain untapped —- from timber, oil and gas reserves, mineral deposits, and even annual hunting lease revenues. The owners stand to lose a great deal.

Option 2: The petitioners could obtain a wetlands development permit from the U.S. Army Corps of Engineers. FWS estimated that the Corps would require that 60% of the property be “managed” for the frog’s benefit. The owners would have to replace currently closed canopy forest and other foliage and create a open canopy environment that meets the dusky gopher frog’s needs. The FWS estimated that cost to the landowners would be $20.4 million.

Basically, the petitioners would be required to tear down one forest and create another.

Option 3: The Service could recommend no development “due to the importance of the unit in the conservation and recovery of the species.” In that case, the FWS estimated the present cost to landlords at $33.9 million.

The Fish and Wildlife Service is essentially telling the petitioners that they can do whatever they want, provided it’s exactly what the Fish and Wildlife Service wants.

Judge Priscilla Owen’s dissent ripped the 5th Circuit’s decision not to hear the case en banc as an “unprecedented and sweeping” holding that “re-writes the Endangered Species Act.”

There is no evidence of a reasonable probability (or any probability for that matter) that it will become “essential” to the conservation of the species because there is no evidence that the substantial alterations and maintenance necessary to transform the area into habitat suitable for the endangered species will, or are likely to, occur.

Judge Edith Jones joined in the dissent and noted that the “landowners could suffer up to $34 million in economic impact. Another shocking fact is that there is virtually nothing on the other side of the economic ledger.” Judge Jones added that if the opinion for the 5th Circuit’s ruling stood it would “encourage” the FWS to pursue “aggressive, tenuously based interference with property rights.”

This case has served as the camel’s nose under the tent for Fish and Wildlife Service to replicate its process elsewhere, particularly in two cases.

  • FWS took a similar approach in 2014 to designate 1.4 million acres of critical habitat for the Gunnison Sage-Grouse—despite almost if not all of it is inhospitable.
  • Also in 2014, 38,954 square miles of critical habitat was designated for the Canada Lynx, also with questionable hospitability.

The Supreme Court is set to decide on whether to grant cert in January. They should strongly consider putting a stop to FWS land shakedown.

Petition here:

Weyerhaeuser Co. Markle Interests Llc Opp by Legal Insurrection on Scribd

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