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Contact: M. Reed Hopper
Principal Attorney
Pacific Legal Foundation
mrh@pacificlegal.org
(360) 279-0937
Daniel A. Himebaugh
Attorney
Pacific Legal Foundation
Pacific Northwest Center
dah@pacificlegal.org
(425) 576-0484

PLF sues over feds' dusky gopher frog land grab

"Critical habitat" designation flouts science, statutes — and the Constitution

New Orleans, LA; February 7, 2013: Attorneys with Pacific Legal Foundation today sued the U.S. Fish and Wildlife Service for illegally designating 1,544 acres of private property in St. Tammany Parish, Louisiana, as “critical habitat” for the dusky gopher frog.

Dusky Gopher frog PR imageFiled in the U.S. District Court for the Eastern District of Louisiana, the lawsuit comes four months after PLF’s official letter warning of legal action if the habitat designation was not rescinded.

PLF is a nonprofit legal watchdog organization that litigates nationwide for limited government, property rights, and a balanced approach to environmental regulations. PLF is donor supported and never charges its clients for attorney’s fees.

In both the October 1, 2012, demand letter and today’s lawsuit, PLF attorneys represent Markle Interests, LLC — part owners of the area that has been illegally set aside as “critical habitat.”

Habitat designation effectively seizes private property where there aren’t any frogs

The “critical habitat” designation was issued in June, 2012. As the lawsuit notes, it included 1,544 acres of private land that is neither occupied nor usable by the frog. “Federal officials flouted the law with their ‘critical habitat’ map for the dusky gopher frog,” said PLF Principal Attorney M. Reed Hopper. “They roped in 1,544 acres that are of no use for this species.

“The Endangered Species Act says ‘critical habitat’ must include features that are essential to conserving the species,” Hopper continued. “But this land does not include the physical and biological features that are critical for the dusky gopher frog, so it’s no surprise that there aren’t any frogs on the property.”

Feds’ frog land-grab puts all private property at risk

“What’s shocking is that the government admits this land doesn’t have dusky gopher frogs and isn’t usable for frogs,” Hopper continued. “But regulators say they hope the property might be transformed into habitat someday in the future. That standard isn’t just illegal, it’s downright frightening for anyone who values property rights. It puts everyone’s property at risk of being federally regulated as ‘critical habitat,’ on the theory that it might, someday, somehow, be modified to host some species.”

The lawsuit challenges the critical habitat designation for several other reasons as well, including:

Inadequate review of harmful economic effects. “The government has a legal obligation to thoroughly analyze the economic impact when land is designated as ‘critical habitat’ for a species,” said Hopper. “With the dusky gopher frog designation, regulators performed only a partial analysis, which failed to quantify all related economic impacts.”

No environmental review, even though the frog habitat designation requires destructive fire-setting. There was no analysis, under the National Environmental Policy Act, of the environmental impacts.  “When a regulatory action will cause direct impacts on the physical environment, it must undergo NEPA review,” said Hopper.  “With the critical habitat designation for the dusky gopher frog, there was no NEPA review, even though the designation calls for aggressive disturbance of the environment.  For example, frequent controlled burns will be required in order to clear vegetation that isn’t consistent with frog habitat.  But the effects of these burns on the physical environment, including air, water, forest resources, and habitat for other species have not been analyzed. So NEPA review is essential — but it didn’t happen.”

Violation of the Commerce Clause. Article I, Section 8, of the Constitution limits federal regulatory authority under the Endangered Species Act to matters of “interstate commerce.” “But the government made no finding that the dusky gopher frog or the designation of 1,544 acres of private land has anything to do with interstate commerce,” Hopper said.

The lawsuit is Markle Interests, LLC v. United States Fish and Wildlife Service.

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.

Oral argument recently took place in PLF’s latest U.S. Supreme Court litigation — the property rights case of Koontz v. St. Johns River Water Management District.

Last year, PLF attorneys won their sixth direct-representation victory at the High Court against over- reaching government: Sackett v. EPA, in which the justices unanimously held that landowners may bring court challenges to federal “wetlands compliance orders.”