Confiscating Private Land For ... Frogs

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Among the abuses that led the Colonies to declare independence from Great Britain was quartering armed troops in civilian homes without the owners' consent. Imagine how they would have responded to this far more egregious abuse.

In 2001, the U.S. Fish & Wildlife Service listed the "Mississippi gopher frog" as endangered. In 2010, the FWS proposed designating acreage in Mississippi as "critical habitat" for the frog, which had long lived there.

[ibd-display-video id=2653345 width=50 float=left autostart=true] By 2012, the FWS had expanded the critical habitat to 4,933 acres in Mississippi - plus 1,544 acres in Louisiana - and changed the amphibian's name to "dusky gopher frog," to cover the new two-state status.

The Mississippi lands have the "essential" habitat requirements and were "occupied by the species at the time it (was) listed" as endangered, thus meeting Endangered Species Act (ESA) criteria for "occupied critical habitat."

Even so, forcing landowners to manage private properties to protect frogs strikes many as abusive and unconstitutional, unless they are compensated for doing so - which the FWS apparently does not intend to do.

However, the frog has not been seen anywhere in Louisiana since 1965 - and the Louisiana lands provide only one of three essential requirements for dusky frog survival: they have "ephemeral ponds" that are dry in the summer but wet in the springtime when the frogs breed.

They do not have the necessary "open canopy" forests, where dusky frogs can live underground, or the essential "abundant herbaceous ground cover" between the ponds and forests. That means the Louisiana private lands are not now, and cannot be, critical habitat for this species.

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FWS bureaucrats viewed these facts as minor inconveniences. The Service doesn't own these private lands - and doesn't want to spend its budget or even work with conservation groups to purchase them.

The agency simply decreed that the Louisiana landowners must transform their lands into appropriate habitat that would ensure dusky gopher frog survival - after some are transported to the new habitat - and must do so at their own expense.

That meant chopping down their "closed canopy" loblolly pines, replacing them with "open canopy" longleaf pines, periodically burning portions of the new forest so that it would support "herbaceous" groundcover, and managing the lands in perpetuity to preserve the new frog habitat.

Doing that in accord with FWS guidelines would cost the landowners millions of dollars in consulting fees and habitat transformation - on top of an estimated $34 million in foregone revenues from hunting fees and timber, energy and housing development.

The state and county would lose millions in foregone taxes and employment income, while worrying about "controlled" fires getting out of control and destroying homes.

The FWS would not budge. The landowners sued - and were rebuffed in court. The parties appealed, but the Fifth Circuit Court of Appeals ruled 8-6 against rehearing the case.

The majority held that the seemingly plain language and history of the 1978 ESA amendments did not actually include a "habitability requirement"; the Louisiana lands are "essential" for preserving the species, even though the lands cannot be suitable habitats unless they are radically transformed; the companies can be compelled to spend their own money and lose future revenue to create new habitats; and the FWS decisions are entirely discretionary, and thus not subject to judicial review.

The six dissenters presented compelling reasons why the majority was incorrect - and cited Supreme Court precedents upholding judicial review "for this exact statute" and reining in attempts to prevent judicial reviews of agency actions.

The plaintiffs and interveners have asked the Supreme Court to accept the Weyerhaeuser v. United States Fish & Wildlife Service case for review. They are supported by amicus briefs from 18 states and multiple legal foundations and other parties.

If the high court lets the lower court rulings stand, the ramifications will be profound.

The FWS and other federal agencies will have unfettered discretion to interpret laws as they see fit, and impose significant costs on private landowners to advance agency agendas.

With over 1,300 more species listed as threatened or endangered in the 50 states and Washington, D.C., no landowners will be immune from having their property commandeered, being compelled to transform uninhabitable acreage into "critical habitats," at their own expense, and being forced to quarter new species on their property in perpetuity.

President Trump promised to end abuses and usurpations by federal bureaucrats. His Interior and Justice Departments could agree that these FWS actions were erroneous and improper. Or the Supreme Court could say so unequivocally.

The future of our legislative, regulatory, judicial and private property rights system hangs in the balance.

  • Driessen is senior policy analyst for the Committee For A Constructive Tomorrow and author of books and articles on environmental policy.

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The views and opinions expressed herein are the views and opinions of the author and do not necessarily reflect those of Nasdaq, Inc.

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