||M. Reed Hopper
Pacific Legal Foundation
Feds Leapt over the law in grabbing private property for Dusky Gopher Frog
St. Tammany Parish, LA; October 1, 2012: The federal government must release 1,544 acres of private property in St. Tammany Parish that it illegally designated as “critical habitat” for the dusky gopher frog — or face a lawsuit.
Pacific Legal Foundation announced today that this warning has just been issued in a demand letter from PLF attorneys, representing Markle Interests, LLC — part owners of the area illegally set aside as “critical habitat.”
PLF is a nonprofit legal watchdog organization that litigates nationwide for limited government, property rights, and a balanced approach to environmental protection. PLF is donor supported and never charges its clients for attorney’s fees.
The demand letter constitutes the 60-day notice required before court action is launched against the federal government over an illegal ESA regulation.
The “critical habitat” designation was issued by the U.S. Fish and Wildlife Service in June of this year. As the demand letter notes, the designation violated the Endangered Species Act by including 1,544 acres of private land that is neither occupied nor usable by the frog, and in fact may never be usable.
“This case is about a federal land grab in one parish in Louisiana — but it’s also about property rights from coast to coast,” said PLF Principal Attorney M. Reed Hopper. “Never before have federal officials attempted to rope off private property as ‘critical habitat’ for a species, where the land is manifestly not suitable for that species.
“The owners are being harmed by this designation because the land’s value is diminished and productive economic uses will be limited or prohibited,” Hopper continued. “The federal government estimated the costs to the landowners may reach $34 million, but the regulators don’t deny the fact that the land isn’t habitat for the frog, as things now stand. In fact, they candidly admit as much. But they say they’re hopeful that someday, the property might be habitable.”
The feds’ land grab in Louisiana could set an ominous national precedent
“The problem with that kind of dreamy approach to habitat designation,” Hopper continued, “is that if someone’s property can be labeled as habitat for a species, even though it isn’t usable as habitat, there are no limits on the amount or location of private land that can be set aside by federal decree. Regulators could impose restrictions on anyone’s property, anywhere — merely by claiming it could someday, in some speculative way, be used for species recovery.”
PLF’s demand that Markle’s land be freed up from this unjustified regulatory restriction — and PLF’s warning of a lawsuit if federal officials don’t comply — rest on a clear reading of the ESA. Under the statute, critical habitat must actually contain the physical and biological features essential to the conservation of the species. But the government admits this property does not contain those features and is not suitable as habitat for the dusky gopher frog.
“The ESA requires federal regulators to weigh the benefit of designating areas as ‘critical habitat’ against the cost of the designation,” said Hopper. “Here, the benefit of this area to the frog is zero, but the cost — levied against the private owners — is enormous. In a rational world, this area would never have been identified as habitat, let alone ‘critical habitat.’ As the Supreme Court has stated, the requirement to consider the economic impacts of ‘critical habitat’ is to prevent federal regulators from ‘zealously but unintelligently’ enforcing the law. But that didn’t work in this case.”
About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is the leading legal watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations, in courts across the country. Among its noteworthy species-regulation cases, PLF won the federal court ruling that removed the bald eagle from the federal ESA list.
PLF’s recent victory in Sackett v. EPA was its sixth precedent-setting victory for liberty and limited government at the U.S. Supreme Court.