Michael Bastasch; The Daily Caller; February 14, 2017
A federal appeals court declined to rehear a case brought against the U.S. Fish and Wildlife Service (FWS) for designating private property as critical habitat for an endangered frog that hasn’t lived on those lands for decades.
FWS officials designated 6,477 acres as critical habitat for the endangered dusky gopher frog in 2012. About 1,500 acres of the critical habitat was private land in St. Tammany Parish, despite the fact no frogs had been spotted there for decades.
Landowners sued, but were rebuffed by federal circuit court judges in June. They appealed their case, arguing the government can’t designate land as critical habitat for an endangered species that doesn’t even live there.
In an 8-to-6 decision, judges declined to rehear the case. But lawyers representing the landowners said they planned on taking the case to the U.S. Supreme Court.
“It was a close call,” Reed Hopper, a senior attorney at the Pacific Legal Foundation (PLF), told The Daily Caller News Foundation.
“As a matter of law and logic non-habitat can never be ‘critical habitat,’” Hopper said. “This tees up the case nicely for Supreme Court review which we will pursue.”
PLF has filed many suits on behalf of landowners whose property rights were curtailed by Endangered Species Act (ESA) designations. ESA designations can basically keep lands off-limits to development by adding new layers of federal permitting and red tape.
Republican lawmakers have been itching for ESA reform for years, and think they may have a shot at making the law more respectful towards property owners with Donald Trump as president.
Lawmakers will likely use this case as evidence the ESA has gone too far, but environmentalists welcomed the appeals court ruling.
“The dusky gopher frog is on the brink of extinction and desperately needed today’s good news,” Collette Adkins, a Center for Biological Diversity attorney, said in a statement.
Adkins agreed with FWS that designating lands the dusky gopher frog doesn’t live on are essential to keep the reptile from going extinct. FWS found that ponds in St. Tammany Parish were the frogs’ last known breeding grounds in the state.
FWS listed the dusky gopher frog as endangered in 2001 in response to a lawsuit brought by the Center for Biological Diversity.
“I hope today’s ruling finally convinces the landowners to stop challenging the frog’s protections and instead cooperate with habitat restoration and frog reintroduction,” Adkins said.
But Brian Seasholes, an ESA expert, said the current way the government designates critical habitats ends up hurting more species than it helps.
“Ironically, this decision will most likely end up harming the dusky gopher frog and many other endangered and at-risk species by causing more landowners take actions to avoid the Endangered Species Act’s draconian penalties,” Seasholes told TheDCNF.
Seasholes said landowners have taken drastic actions to keep endangered species off their lands, “including ‘scorched earth’ (destroying habitat), ‘shoot, shovel and shut-up’ (killing species), going silent, denying researchers and government personnel access to their land, and refusing to become involved in species conservation efforts.”
Six dissenting judges agreed, and offered a 31-page dissent challenging the majority’s ruling. Judge Edith Jones compared her colleagues to dusky gopher frogs in the dissent.
“The panel majority regrettably followed the same strategy in judicial review—play dead, cover their eyes, peek, and play dead again,” Jones wrote.
“The frogs currently live upon or can inhabit eleven other uncontested critical habitat tracts in Mississippi,” she wrote. “No conservation benefits accrue to them, but this designation costs the Louisiana landowners $34 million in future development opportunities.”
Jones castigated the majority for holding “the ESA and its implementing regulations have no ‘habitability requirement,’” adding that the “Louisiana land is ‘essential for the conservation of’ the frog even though it contains just one of three features critical to dusky gopher frog habitat.”
PLF argued dusky gopher frogs wouldn’t even be able to live on the lands designated by FWS unless they modified the vegetation and physically moved the frogs to the area. None of the frogs live in Louisiana, but 100 currently live in Mississippi.
“Unfortunately, the court’s decision in the dusky gopher frog case will have a chilling effect on landowners’ willingness to conserve endangered species,” Seasholes said. “This decision is a real lose-lose; landowners lose, and as a result species will lose.”