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The Fish and Wildlife Service is out of control and we should all be concerned

The Fish and Wildlife Service is out of control and we should all be concerned

Uses endangered frog to strip property owners of their rights

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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You lost me at Weyerhauser. I’m with the liberals on this one.

They have no concern what so ever for the environment or their workers. They are horrible stewards of the land.

I’ve watched these timber companies for close to 45 years in Washington and they really effed themselves back in the 80s and 90s.

I won’t stand by them and never will again.

    Shane in reply to Andy. | December 6, 2017 at 8:43 pm

    Andy you better do some more research on Weyerhauser and all of the deforestation that has happened you will find some shocking results.

      n.n in reply to Shane. | December 6, 2017 at 9:37 pm

      Like wind and solar drivers, but unlike non-renewable, gray environmental blights including windmills and photovoltaic panels, trees are a renewable resource exploited to improve the quality of human life. Weyerhauser seems to recognize this. However, evironmentalists still want profit sharing.

      Andy in reply to Shane. | December 6, 2017 at 10:35 pm

      yeah- I ran on those logging roads and watched them and the other timber companies cut EVERYTHING to avoid hostile take overs- and this was BEFORE the race to beat the spotted owl and Clinton era restrictions.

      Nowadays they are rubbing elbows pretty tightly with the tribes too, so don’t try and sell me that all of a sudden they are the victims. You know the shit stinks when they timber companies have been running the propaganda commercials to convince everyone they are all about stewardship. Local loggers are no fans of them either and I’m from a town full of them.

      Weyerhauser is a predator, not a victim.

        Andy in reply to Andy. | December 6, 2017 at 10:40 pm

        oh- and this is a company the jettisons hundreds of employees every time they need to meet earnings.

        I’m no rescuer of toads or whatever- but I know better than to hitch any political wagons to timber companies. they truly qualify for all the crap the left throws at them.

          mailman in reply to Andy. | December 7, 2017 at 2:54 am

          So you are judging this company on behaviour 30 years ago? People and companies change over time whether you like to admit it or not. Secondly, these are trees you are crying about. Trees grow back! Finally, companies downsize, right size, outsource, fire people all the time. Thats what companies do. If YOU don’t want to get fired because your company is trying to hit profit numbers then do something else in your life that doesn’t expose you to that kind of behaviour.

          Voyager in reply to Andy. | December 7, 2017 at 11:47 pm

          The rule of law must apply to everyone, even the wicked, or it will apply to nobody, especially the wicked.

    Halcyon Daze in reply to Andy. | December 6, 2017 at 8:56 pm

    It’s the War on Tree Farmers waged by socialistic government workers who would prefer all land be owned by the government. You down with that?

      C. Lashown in reply to Halcyon Daze. | December 7, 2017 at 7:27 am

      All land owned by the government, AND…without any people living on it. If the government had it’s druthers, everyone would be living in a megalopolis eating protein cakes and sugar water – dropping dead at 45.

      The government and environmentalists would love the have the land revert to ‘mother earth’ while the citizens were under the thumb of any tyrant.

    Mac45 in reply to Andy. | December 7, 2017 at 12:33 pm

    Who owns the land is unimportant. What is important is that the FWS came in and designated an area, which has no extant population of this particular species present and which is not particularly well suited to the needs of the species, and arbitrarily restricted the use of that land by the owners. This is a dangerous precedent.

    It is bad enough that most such endangered species designations essentially amount to a taking of private property without compensation, as the property is unusable by the owner and the prospects for sale of the property are remote. And that the owner has to continue being taxed on the original value of the property [plus improvements], even though it is now essentially useless to him. But, to do so for property upon which the specified endangered species does not reside is nothing short of criminal. The government has no authority, under the Constitution, to restrict the use of private property to “protect” indigenous species. The eco-activists in the FWS, and other ecological bureaus,, have been doing this since their inception, decades ago.

    phunctor in reply to Andy. | December 8, 2017 at 10:15 am

    “You lost me at Weyerhauser. I’m with the liberals on this one.”

    Consequentialism — why even have laws?

Don’t the tree huggers believe in evolution? Who is to say it’s not the frog’s time? Why are you messing with Mother Nature? Has anyone kissed any of these frogs, they may be Princes! People wanna know.

The Endangered Species Act was one of the greatest governmental disasters of the last century; a conceit based on a kindergarten-level misunderstanding of population dynamics and biological ecology, and implemented in a way almost guaranteed to invite gross abuse. It makes Prohibition, the Domino Theory, and Mutual Assured Destruction seem like sensible policies by comparison.

“You see, the frog hadn’t been seen in Louisiana since 1965.”

So what? These bozos will just plant a few if necessary like they did in 2002.

“Scientists employed by the U.S. Forest Service and the Fish and Wildlife Service knowingly submitted falsely labeled samples of lynx fur in a survey of lynx populations in two Washington state national forests.”

FWS is an arm of the Department of the Interior. Somebody should be camping on Mr. Zinke’s desk.

As a resident of Greater Sage Grouse country, I know exactly the kind of havoc this kind of stuff can wreak.

More bogus lawsuits and prestructured judgements that the Plaintiffs, the Fed. Defendant and judge are in on. Designed to destroy property rights and industry. No subt a great deal of money went to the Plaintffs and the Judges were to rewarded via stature.

Speaking of frogs (which of course, live in swamps):

Donald Rumsfeld on Trump: US ‘Better Off Today Than If We Had Hillary’ —

Speaking of frogs (which of course, live in swamps):

Donald Rumsfeld on Trump: US ‘Better Off Today Than If We Had Hillary’ —

and the weaponization of government agencies continues.

Yeah, those evil forest products corporations are greedily cutting down all the trees en route to their huge profits! /sarc

Don’t these idiots realize that trees are their vital resource?
Don’t they realize that Weyerhaeuser et al are planting as many trees as are harvested?

Full Disclosure: I was an employee of Willamette Industries for 12 years prior to the hostile takeover by Weyerhaeuser.

I would NOT say this in front of a group of libtards, out of fear for my life, but…

It’s called evolution. Species come and go. Plants and animals go extinct naturally and it has been happening for millions of years, long before men.
I am all for protecting the planet, the environment. Love of nature, hunting and fishing were part of my upbringing and are part of my family’s heritage. But it’s downright arrogant for us humans to play God by pretending that we can control the Earth’s temperature or the diversity of the Biosphere.
WE should do no harm, and I support any and all common sense efforts to protect and preserve; the key term being ‘common sense’. But common sense is itself an endangered species.
We humans have made mistakes, and it’s true that in the past we have caused catastrophic damage out of ignorance. Now we know better, but that does not mean that we should “save” every little critter on Earth. Some or many of them are meant to disappear. It’s not our place to get in the way of God’s plan, or Mother Nature’s plan for those who don’t believe.

Bring back the Eat More Possum bumper stickers and get rid of the Endangered Species Act.

a propos “weaponization of government agencies”, whatever happened to those gargantuan amounts of ammo that the Keyan had stocked his agencies with?

State(s) and Federal Fish and Wildlife Agencies have been out of control for forty years or more.