Farm Progress

If the Supreme Court does not overturn prior decisions in this case, none of your land is safe from being taken by the federal government when an endangered species might find your property useful.

Gary Baise 1, Environmental Lawyer/Blogger

January 30, 2018

4 Min Read
Dusky gopher frogSturgis McKeever, Georgia Southern University,

Last week I commented on the mystery of the invisible frog. On Jan. 22, the U.S. Supreme Court announced it would hear and decide whether the U. S. Department of Interior (DOI) and U. S. Fish and Wildlife Service have boundless authority to control local land and water using the Endangered Species Act as its authority.

Several readers of this blog either called or wrote me with the same reaction – This cannot be happening in the United States! It is happening and the current U.S. Department of Justice is supporting this taking of private property.  Several environmental groups opposed the U.S. Supreme Court reviewing this case. The Supreme Court has the authority not to hear cases it considers not worthy.

One group supporting FWS in suggesting it has boundless authority to control local land and water use is the Center for Biological Diversity. This environmental group supports FWS claims that ESA’s critical habitat designation would have many benefits for the invisible frog, and that the Markle Interests claims regarding costs are exaggerated. (Remember, the frog cannot even be found on the Markle land.)

The defenders of DOI and FWS claim the Supreme Court should not “…delve into the administrative record to examine such a fact-specific issue dependent on the agency’s exercise of its scientific expertise.”

The Center notes that the dusty gopher frog is highly endangered and lives underground in pine forests and undertakes its breeding “…in small ephemeral ponds that lack fish.” In fact, the frog lives in three small isolated populations in two counties in southern Mississippi. It is claimed only one pond shows any reproduction by the frog.

About 100 adult frogs exist in the wild and they are threatened by habitat loss and disease.

What provoked this case?

The Center sued the FWS in 2001, and this litigation caused FWS to propose the Markle Company’s land in Louisiana as a critical habitat for the frog. FWS made public its proposed rule in 2010 and all of the experts claimed the amount of habitat proposed was insufficient, and noted there should be additional critical habitat designated in Alabama and Louisiana.

The final FWS rule designated 1,544 acres of the Markle Company’s land and approximately 5,000 acres in four counties in Mississippi.

As we know, FWS found that the Markle Company’s land is essential for the conservation of the frog. The argument of FWS is there are five ponds and ephemeral wetlands on the Markle property and that adult frogs could move between these ponds and create a “meta” population.

FWS believes the low number of remaining population and the restricted range of the dusty gopher frog could cause the species to die out due to disease or drought. It is believed that maintaining five ponds where the dusty gopher frog could be translocated is essential to stopping the extinction of this frog.   

According to the environmental brief, FWS “…concluded that petitioners (Markle) would experience no economic impacts if they continued to use the land as pine plantations…”

Economic losses in the millions

You may remember the Markle Company has other plans for this land. You may also remember that FWS estimated the Markle’s economic loss in development value of the property to be approximately $34 million over 20 years. 

The Center argues that the ESA can define critical habitat to include unoccupied areas as long as that area is “essential for the conservation of the species”.  The ESA does not define “essential” and the Center believes FWS has the authority to use its expertise to decide when a habitat is essential on a case-by-case basis.

If this is true, and the Supreme Court does not overturn prior decisions in this case, none of your property is safe from being taken by the federal government when an endangered species might find your property useful.

The Center also points out the 5th Circuit Court of Appeals supported the frog experts who all claimed that it was essential for the conservation of the species to designate critical habitat in Louisiana or Alabama.  FWS therefore claims it had the authority under the ESA to determine any area it chooses as essential for the conservation of the dusty gopher frog.

Just remember this could happen to you unless the U.S. Supreme Court rules that private property laws still have teeth in the United States.

The opinions of the author are not necessarily those of Farm Futures or Farm Progress.

About the Author(s)

Gary Baise 1

Environmental Lawyer/Blogger

Gary H. Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Matz PC specializing in agricultural and environmental trial issues in state and federal courts. He also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, National Sorghum Producers and counsel to the American Soybean Association.


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