“Critical habitat” decree opens the way for limitless federal land grabs
Markle Interests, LLC v. U.S. Fish and Wildlife Service
Contact: M. Reed Hopper
Status: Briefing before the Fifth Circuit Court of Appeals was completed on March 9, 2015. Oral argument was held on June 2, 2015. On June 30, 2016, the court held 2-1 that the Service can designate areas that do not currently qualify as critical habitat, and will not foreseeably serve as critical habitat, and are unoccupied by the species, nevertheless may be deemed “essential” to the species’ conservation and therefore eligible for designation as “unoccupied critical habitat.” The joint motion for rehearing en banc filed in the 5th Circuit on July 29, 2016. On February 13, 2017, the Fifth Circuit denied rehearing by the full court. The case will be petitioned to the U.S. Supreme Court.
Can federal officials label private property as “critical habitat” for an endangered species, when the land is acknowledged not to be usable for the species, and may never be usable habitat?
This is what the U.S. Fish and Wildlife Service has done in the matter of the Dusky Gopher Frog in the Gulf Coast Region. In June, 2012, when the agency designated “critical habitat” for the species, regulators stretched the Endangered Species Act beyond any previous interpretation by including 1,544 acres of private property in St. Tammany Parish, Louisiana, that is manifestly not suitable for the frog.
In fact, the Service itself admits as much. The designation of this forested area is based on pure speculation. The Service hopes the land might someday be managed by private parties for the species’ conservation. However, the only way to make this area suitable for habitat is through controlled burns and revegetation, which the Service admits it cannot mandate on private land.
PLF is representing the property’s owners in challenging this unjustified federal targeting of their land. Under the ESA, critical habitat must actually contain the physical and biological features essential to the conservation of the species. If property can be designated even though it isn’t usable as habitat, there are no limits on the amount or location of private land that can be roped off by federal decree. Regulators can impose restrictions on anyone’s property, anywhere — merely by claiming it could someday, in some speculative way, be used for species recovery.