Plaintiff in St. Tammany landowner vs. frog dispute seeks leap to U.S. Supreme Court

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The dusky gopher frog is an unimpressive-looking little creature: small, shy, covered with warts and

The dusky gopher frog is an unimpressive-looking little creature: small, shy, covered with warts and facing likely extinction unless its habitat can be expanded.

But property rights advocates say the federal government has overstepped in efforts to save the amphibian, and what's really endangered are the rights of anyone in the United States who owns land.

The dispute began when the U.S. Fish and Wildlife Service designated 1,500 acres of privately owned land in St. Tammany Parish as critical habitat for the species and therefore subject to controls on the land's development. The issue might end up being settled by the U.S. Supreme Court.

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Case of endangered frog, once native to Louisiana, likely headed to Supreme Court

The dusky gopher frog is headed to the Supreme Court.

The Fish and Wildlife Service says a network of shallow ponds makes the 1,500-acre tract the only potential breeding ground outside Mississippi for the dusky gopher frogs.

But the Pacific Legal Foundation filed a petition last week asking the Supreme Court to review the decision to designate the 1,500 acres as critical habitat.

The plaintiffs in the case, Markle Interests LLC, lost at the U.S. District Court level in 2016, although in making his ruling, Judge Martin Feldman called the government's action "remarkably intrusive (and with) all the hallmarks of governmental insensitivity to private property."

A three-judge panel of the 5th U.S. Circuit Court of Appeals upheld Feldman's decision. Then, in February, the full appeals court declined to rehear the matter, setting the stage for the plaintiffs to appeal to the Supreme Court.

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Case of endangered frog, once native to Louisiana, likely headed to Supreme Court

The dusky gopher frog is headed to the Supreme Court.

Edward Poitevent II, one of the property's owners, said he never imagined he would be seeking redress from the Supreme Court when he received notice in 2012 that the Fish and Wildlife Service had designated the land as critical habitat for the frog.

"I guess I was naive," said Poitevent, a lawyer. "I thought surely there must be a mistake, and the government will correct its error."

The gopher frog is extinct in Louisiana, he said, and has been for more than 50 years. While the land does contain the temporary ponds the frog needs to reproduce, it lacks other key features required for the species' survival, he said.

"What I learned is, once it gets into the system, they've already made the decision," Poitevent said. Hearings and public comments didn't matter, he said: "I've learned through the experience, they weren't going to budge."

The land is under a long-term timber lease to the Weyerhaeuser Corp., running until 2043. But at some point, the owners want to develop the land. However, because there are wetlands on the property, a U.S. Army Corps of Engineers permit will be required, and that's where the critical habitat designation could come into play.

The plaintiffs argue they stand to lose $34 million — what they claim the land is worth if it can be developed — if they can't do anything with it.

While the lower courts held that the Fish and Wildlife Service acted within its discretion in making its designation, the plaintiffs were encouraged by a strong dissent on the part of six judges on the 5th Circuit, who said the decision gives the government virtually limitless power to designate "critical habitat."

The question for the Supreme Court, according to the petition, is whether the Endangered Species Act gives the federal government the power to designate as critical habitat private land that has no actual connection with a protected species and, even if does, whether the U.S. Constitution allows that.

The Pacific Legal Foundation — a prominent conservative legal organization that supports property rights and limited government — is asking the Supreme Court to decide if such private property satisfies the law's definition of critical habitat.

It says the high court needs to resolve a conflict between the 5th Circuit's decision and other courts' rulings that land that's not actually occupied by a species should be held to a more rigorous standard in determining what is critical habitat.

The 5th Circuit ruling also conflicts with a previous Supreme Court decision that economic and other impacts must be considered in making a critical habitat designation, the petition says. 

Whether the Supreme Court decides to take up the case remains to be seen. Reed Hopper, an attorney with the Pacific Legal Foundation, thinks the chances are good, based in part on the strong dissent at the 5th Circuit.

"It's also an extreme case of government overreach that will interest the court, as well as the constitutional aspects that will invite the court to hear it," Hopper said.

Attorneys for the plaintiffs said the designation of the St. Tammany land was a first.

"To our knowledge, they never before have identified an area of non-habitat as critical habitat, or one that doesn't contribute in any way to the conservation of a species," Hopper said.

But Tulane University law professor Oliver Houck, whose areas of expertise include environmental law, thinks the high court is unlikely to weigh in.

Houck sees the case as purely statutory, not constitutional. The land in question is needed for the species' survival, he said. With only about 100 dusky gopher frogs left in the wild, the breeding number is probably only about 50, he said, and the species is facing an extinction spiral.

"Unoccupied habitat is the only lifeline they've got. ... They're hanging on by a thread," Houck said, predicting the species will be gone in 20 to 30 years without more habitat and more individuals.

"This is the only place left. If (the species) is ever to recover, it's going to need it," Houck said of the St. Tammany land, and that's the reason Congress passed explicit provisions on preserving habitat, even habitat not now occupied by listed species. 

When the case was tried at the district level, Houck said, a very conservative federal judge upheld the government. Even though he openly disliked the result, Feldman essentially said, "I have to follow the law, and this is what the law says," Houck said. "I really think there's no cavil that this is what the law is."

That leaves the question of whether the designation amounts to an illegal "taking" of the property, Houck said, and that question has not been tried at a lower court. To prove it is a taking, he said, the plaintiff would have to prove that because of the designation no economically profitable use of the land is possible, and that's not the case.

But Paul Baier, the Judge Henry A. Politz professor of law at LSU, thinks the Supreme Court is likely to hear the case. "It strikes me as extremely bizarre," he said of the Wildlife and Fisheries Service designation.

"I would congratulate the Pacific Legal Foundation for a compelling petition," said Baier, who teaches Supreme Court practice and has reviewed many such petitions.

The federal agency "has stretched the Endangered Species Act to the snapping point," he said. "The U.S. Supreme Court should, and likely will, snap it back."

Only four votes on the court are needed to accept the case, Baier said. "President (Donald) Trump's man will have an effect. I'm confident (newly confirmed Justice Neil) Gorsuch and the other members of the court who consider property rights important will vote to grant," he said.

Houck agreed that Gorsuch will be inclined to accept the petition. "It's a brand new ball game here. Who knows whether the Supreme Court will follow precedent? There's been no shyness in destroying precedent in recent years," he said.

"Even if they lose, they (the Pacific Legal Foundation) will make this as big a deal as they can," Houck said. "They can go right to Congress. ... The Endangered Species Act is on the block over the next year or two for sure."

Hopper, the Pacific Legal Foundation lawyer, doesn't disagree that the dusky gopher frog case could serve as a poster child for property rights advocates. "The case is on the radar, on the administration's radar. Congress is aware of it," he said. "I think, win or lose, it could be an impetus for some legislative change."

Poitevent, for his part, sees this case as being about far more than the future of his family's land, and his interest goes beyond the personal and even the legal.

"Looked at from 30,000 feet, there are national implications for everyone who has a backyard," he said.

Plaintiff in St. Tammany landowner vs. frog dispute seeks leap to U.S. Supreme Court

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Article Plaintiff in St. Tammany landowner vs. frog dispute seeks leap to U.S. Supreme Court compiled by www.theadvocate.com

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