Posted on 12/26/2018 1:59:31 PM PST by yesthatjallen
The dusky gopher frog is a critter that can be found in certain areas of Mississippi — and nowhere else. Yet the U.S. Fish and Wildlife Service decided to “protect” the dusky gopher frog by using the Endangered Species Act to designate a 1,500-acre tract of private forestry land in Louisiana as “critical habitat necessary for the species’ survival,” even though the land is not inhabited by the frog, and is in fact unsuitable for the species.
Naturally, the owners objected — the economic hit would have been up to $34 million, though the FWS refused to take that into account. The agency then said its decision wasn’t reviewable by any court.
That’s right. According to the federal government, the FWS’s irrational decision to designate uninhabited areas as critical habitat was not subject to judicial review.
The landowner’s position, quite reasonably, was that private land couldn’t be designated as critical habitat unless it was, at the very least, a habitat — meaning that the endangered frog could and did live there.
It took years of litigation (mostly over whether the government’s decision was judicially reviewable), but the case eventually won a hearing before in the U.S. Supreme Court. In Weyerhaeuser v. United States Fish and Wildlife Service, the Court held in a unanimous decision that centuries of tradition, as well as the Administrative Procedure Act, provided a presumption of reviewability. The Court sent the case back to the lower courts to determine whether the government’s decision to designate as critical habitat the 1,500-acre forest tract could withstand the red-face test.
The ruling is a victory for private landowners throughout the nation who have been plagued for decades by critical habitat designations, which substantially limit the use and decrease the value of private land.
For example, to obtain a federal permit to grade a site to control erosion or build a pond in an area designated critical habitat, landowners must go to the FWS for a “biological opinion” which sets forth specific conditions that must be included in the permit. This, and other special requirements, results in a laborious and time-consuming process which often makes productive use of these private lands impracticable or impossible.
And in some cases we’re talking about hundreds of thousands, even millions of acres. For example, the entire West Coast of the United States from the mid-point of California to the northern tip of the Washington was designated as critical habitat for a marine species known as the green sturgeon.
Until the Weyerhaeuser decision, lower courts had consistently held that the government’s refusal to exclude areas from critical habitat designation based on economic impacts could not be judicially reviewed, thus leaving landowners at the government’s mercy.
The absurdity of those lower court decisions came into full view in Weyerhaeuser because the designated habitat was neither inhabited nor even inhabitable by the species the government sought to protect. After decades of leaving property owners without a remedy to combat the government’s refusal to act rationally in connection with critical habitat determinations, the Weyerhaeuser decision finally invoked the ancient remedy of judicial review.
Now, the lower courts will have to decide the substantive questions posed by the landowners: Can land that is neither inhabited nor inhabitable by the dusky gopher frog be regulated as critical habitat for the species? Will the biological benefits to the species outweigh the cost to the owners?
After the Supreme Court made its ruling, many in the press portrayed it as a loss for the frog. The New York Times, for example, reported that “the dusky gopher frog loses a round in the Supreme Court.”
The truth is the case was a win for the rule of law. And the dusky gopher frogs are no worse off than they were before.
Ted Hadzi-Antich and Ryan D. Walters are attorneys with the Center for the American Future at the Texas Public Policy Foundation. They filed an amicus brief in the Weyerhaeuser case on behalf of the National Federation of Business and the Building Industry Association of the Bay Area arguing that all critical habitat decisions made by the federal government under the Endangered Species Act should be judicially reviewable.
I once was a volunteer trail maker for the USFS. USFS had designated a type of slug as endangered. Trees could not be cut within a certain radius of where such slug was found. Biologist put little flags wherever they found an endangered slug. The little flags were all over the place, it was full of them.
A victory, albeit a small one. Plaintiffs still need to have the case reviewed by a lower court, so it ain’t over yet.
But still, it IS a start...
Dusty frogs would be better off if they moved to a lake to get rinsed off.
This clear taking of property for government use.
It should be covered by the takings clause. If the government prevents use of the land, so that it will be used for a government purpose "biological benefits to the species" then the government must pay for the taking.
Then sent the dehydrated trophies anonymously to the people in the FWS who are responsible.
“After decades of leaving property owners without a remedy to combat the government’s refusal to act rationally...”
There is a remedy and it is called the Right to Keep and Bear Arms.
You could take care of this problem over a long weekend.
I assume the F&W Service has their own army with munitions normally seen in Iraq and a couple of million rounds of hollow points.
The tyranny is coming at us from all directions.
Far from endangered they were a plague requiring substantial eradication leading to...endangered species designation.
At what cost to the land owner for the attorney's fees..........
Years ago there was a road that flooded all the time due to beaver dams. Caused the residents many miles of extra driving. Game commission was going to trap and relocate. Animal lovers protested and camped there for several weeks. One night they all went to a meeting. Upon return they found the carcases of all the beavers. The dam was desroyed and life went on. The protesters went home. End of story...
And this is the problem with what the environmentalists do. They create a situation that does more damage than good. I remember when the Desert Tortoise was listed as endangered. I was living right in the middle of it at the time.
Ca immediately jumped on this and passed an “environmental impact study” law. Everyone clearing new property had to pay about 7k to have a study done to make sure there were no Tortoises on the property, even in the city.
And if a tortoise was found it cost another 7k per tortoise to “relocate” it. You can bet that there were thousands of tortoises “pre-relocated” or even destroyed illegally to make sure none were found by the Bio doing the study.
They never take human nature into account when they do these things and so the law it’s self ends up creating more damage than good. Since then I have realized it has nothing to do with protecting these species, it’s only about theft, control, and money.
If anyone finds a endangered species on your land do not report it kill it and bury it. that is if you want to keep your land.
So how do we convince them california is in danger of liberals getting out and destroying the habitat of normal people so we need to build a 90 ft wall around it?
Making them pay a 7k environmental impact fee to relocate might help slow it down... lol
Unfortunately this is exactly what is happening.
We should pay these bastards back in their own coin. The President should declare Pelosi’s mansion and vineyard national monuments. After all, what better way to honor the “First Female Speaker of the House or Representatives”.
That’s not a bad idea, FEINSTEIN... She is the one who created this whole mess when she picked up the baton from Alan Cranston.
In light of this new decision, President Trump could make a radical, by government standards, order.
Direct the FWS to review and publish every single instance of a non-judicially reviewed action on their part similar to this, along with notification to those individuals and companies involved that they now have “standing” for judicial review of their situation that could lead to the return of their land, and its legal use by them.
And possibly, remuneration of the money that these FWS actions cost them, both in direct legal costs and the loss of their property and the use thereof.
Why is this radical?
Because in past, when government ran roughshod over people, they were still locked out of legal remedies unless they were part of the decision.
Another way of looking at this would be, “If marijuana is legalized for personal use, should those in jail *just* for possession of small amounts of marijuana be freed?”
Same basic concept, except the frog decision is civil and the marijuana one is criminal.
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