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Invisible Frog Threatens Private Property

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Editor’s note: The U.S. Supreme Court on Monday announced it will accept the Louisiana ESA frog case for briefing, argument and decision.
“The essentially boundless authority granted the federal government by the Fifth Circuit [U.S. Court of Appeals] to control local land and water use under the guise of species protection conflicts with a plain reading of the Endangered Species Act.”
I spoke last week to the Illinois Association of Drainage Ditches and noted the ESA is a basic threat to farmers with drainage ditches on or close to their property in any state particularly in Iowa, Illinois and Indiana because of a case presently pending in the United States Supreme Court. It is a story you will not believe. Maintaining drainage ditches is a huge issue in the above-mentioned states and others. The ESA has basically been applied in the Far West. Now the ESA is likely to be applied when improvement work is contemplated on drainage ditches.
The question posed before the Supreme Court is shocking. Can the Department of Interior’s Fish and Wildlife Service (FWS) designate and take a landowner’s property as critical habitat, when the land is unsuitable as a habitat, has no connection with a protected species, and the species has not been seen on the property? The case of the “invisible frog” has been widely described in the press because it is hard to believe or understand.
The story begins in 2001 when FWS listed the Mississippi gopher frog as an endangered species. In 2010, the FWS issued a rule designating approximately 2,000 acres in Mississippi as habitat for the frog. In 2011, FWS expanded the radius for the protection of the frog by designating more than 1,500 acres of privately owned land in St. Tammany Parish, LA, because it was alleged the frog might have been at the sight in 1965.
The owners claim their land does not now nor never will in the future contain elements for the frog to live on their property. The owners had leased the land for timber operations and planned on developing home sites and businesses on the property.
In 2012, FWS renamed the gopher frog as the “dusky gopher frog.” FWS claims the landowners’ site “…could provide a refuge for the frog should the other sites suffer catastrophic events.”
Under the ESA, an economic analysis must be undertaken. On all the sites in Mississippi, the economic impact on the majority of sites was $102,000. The designation on the timber site in Louisiana was approximately $34 million over 20 years.
The case pending in the Supreme Court is Markle Interests, LLC v. The United States Fish and Wildlife Service.
That $34 million over 20 years is a pretty big economic impact, considering that the dusty gopher frog has never been found on the Louisiana property. Even the lower courts said the FWS determination that the 1,500 acres was critical habitat for the frog was “…odd, troubling, harsh, and remarkably intrusive [with] all the hallmarks of governmental insensitivity to private property.”
One judge dissented vigorously, and was concerned that a designated ESA area that does not have biological or physical characteristics that would support the dusty gopher frog was beyond the pale. The dissenting judge claimed, “Land that is not essential for conservation does not meet the statutory criteria for critical habitat.”
The majority opinion is dangerous for all landowners because it allows FWS and the Department of Interior “…to impose restrictions on private land that is not occupied by the species, and is not near areas inhabited by the species and cannot sustain the species without substantial alterations and future annual maintenance, that the government cannot effectuate… [and] the panel decision would unduly subject large areas of the United States to strict federal regulation.”
This case falls far outside the parameters of ESA and common sense. It is also an example of a government agency out of control and protected by a legal interpretation which allows the government’s decision deference when there is ambiguity in the statutory language.
The true tragedy of this case is the Trump administration’s Justice Department apparently is supporting the Department of Interior’s outrageous taking of private property.
(This article first ran in Farm Futures on January 22, 2018.)
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