RUTHFULLY YOURS

Imagine waking one day and learning that federal officials have declared your private property subject to federal control as “critical habitat” for an endangered frog, even though the frog does not and cannot exist on the property or, apparently, anywhere else in the state.

That is the surreal fate of the Poitevent family, owners of a parcel of land in St. Tammany Parish, La., that has been in the family for more than 100 years. The family started a lumber business on the property after the Civil War. The land is still managed for timber today.

A few years ago, the U.S Fish and Wildlife Service declared the property “essential” to the survival of the Mississippi gopher frog, aptly named, as it’s found only in Mississippi. Only later, when federal officials decided to expand the frog’s territory into Louisiana, did they give it the name it bears today: the dusky gopher frog.

But there is nothing apt about designating over 1,500 acres of private land “critical habitat” when the property is not used as habitat, is unsuitable as habitat, and has no direct connection to the dusky gopher frog.

Federal regulators don’t deny any of this. Instead, they express the hope that the Poitevents’ property can be modified at some point to become hospitable habitat for frogs. This is pure speculation, because the property is tied up in timber leases for decades and may never be usable habitat. Rather than acquire the property so it can be managed for species protection, the government seeks to impose the cost of species conservation on the landowners, who did nothing to put the gopher frog in peril.

Although the property provides no conservation benefit to the gopher frog, the government estimates that the regulatory restrictions on the landowners could cost them $34 million.

A federal district judge took a dim view of this costly land grab, calling it “troubling,” “harsh,” and “remarkably intrusive,” with “all the hallmarks of governmental insensitivity to private property.” Nevertheless, the judge felt “compelled” to defer to the government and allow the “critical habitat” designation to go forward.

On appeal, a three-judge panel of the Fifth Circuit also deferred to the government, by a 2–1 vote. However, the dissenting judge argued that if regulators can declare that the Poitevents’ non-habitat property is “critical habitat,” the same could happen to any property owner, anywhere. This outcome defied both logic and the law, the judge insisted.

On an 8–6 vote, the full Fifth Circuit declined to review the panel decision. In a stinging, 32-page opinion, the six dissenters called the panel decision an “execrable” misinterpretation of the Endangered Species Act and said it ran contrary to Supreme Court precedent.

The six dissenters warned that their colleagues on the court had signed off on “unprecedented and sweeping” overreach by government officials, giving them “virtually limitless” power to rope off any parcel in the country as “critical habitat” for one species or another, regardless of whether any endangered species could be found on or near the land. “The ramifications of this decision for national land use regulation and for judicial review of agency action cannot be underestimated,” the dissenters wrote.

Emboldened by the Fifth Circuit’s ruling against the Poitevents, the Obama administration developed a new rule that takes this open-ended approach to designating “critical habitat” and applies it nationwide. Now, every landowner, large or small, is in peril of becoming the next Poitevent family, forced to set aside private property as a future home for a species that lives somewhere else.

To protect property owners across the country and enforce constitutional limits on federal power, Pacific Legal Foundation is representing the Poitevents and co-owners, Markle Interests, in asking the U.S. Supreme Court to take their case and overturn the panel decision.

The justices will consider the request this fall. To preserve a healthy habitat for property rights, the rule of law, and fundamental common sense in environmental policy, the Supreme Court should hear this case.

— Reed Hopper and Mark Miller are senior attorneys with Pacific Legal Foundation, representing the property owners who are appealing to the Supreme Court in the dusky-gopher-frog case.