On Monday, the Supreme Court of the United States (SCOTUS) heard its first cases for the upcoming judicial session. Center stage is the dusky gopher frog, or Mississippi dusky gopher frog, that is causing immense headache for one Louisiana man who leases his land to Weyerhaeuser Company, one of the world’s largest timber companies.
Weyerhaeuser was started in 1900 and is one of the world’s renowned and largest private owners of timberlands. They reportedly control 12.4 million acres of timberland in the U.S. and 14 millions acres under long-term leases in Canada. They also focus on manufacturing wood products.
The case Weyerhaeuser vs. USFWS would have been the first case Brett Kavanaugh heard had his nomination gone through the Senate, but alas, hopefully we’ll get that on Friday.
The plaintiffs, Edward Poitevent and Weyerhaeuser Company, are having their case heard before SCOTUS because Unit 1, 1,500 acres of private land they own, has been deemed critical habitat for the frog in question, although the frog hasn’t been found there in 50 years and is currently located 70 miles away in Mississippi.
This case will rule whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.
Weyerhaeuser was first heard in the local district court and then the U.S. Court of Appeals for the Fifth Circuit, where it was voted down. Here’s a synopsis of the case, as detailed by Pacific Legal Foundation:
Edward Poitevent’s, the plaintiff, family has owned land in Louisiana since the end of the Civil War. The land in St. Tammany Parish is rich in lumber and is the major source of his family’s livelihood. In 1953, after nearly losing their property during the Great Depression, the Poitevent family signed a 90-year lease which has allowed the family to keep the land. And in the 1990s, Weyerhaeuser Company acquired the Poitevents’ lease for its timber operations.
Edward considers the land as much more than an investment. “It’s like a piece of family silver or a treasured piece of art. It’s a family asset and I’d love to be able to pass it on to my own children,” he says.
But in 2012, under cover of the Endangered Species Act, the U.S. Fish and Wildlife Service declared more than 1,500 acres of property owned by Edward and Weyerhaeuser a critical habitat for the dusky gopher frog.
No one in the entire state of Louisiana has spotted the frog in 50 years. The only place the frog is found today is nearly 70 miles away from Edward’s property in Mississippi. In fact, the critter’s official name was the Mississippi Gopher Frog until 2012—right about the time bureaucrats arbitrarily decided that if Edward drastically overhauled his property—at his own expense—the frog might be able to survive in Louisiana too.*
By locking down land on behalf of a frog that doesn’t live there, the feds froze an estimated $34 million in economic activity. Nor can Edward use his own land for anything else in the future—a literal death knell to his property rights.
The U.S. Fish and Wildlife Service implemented Section 4(B)(2) to better clarify the designation of critical habitats on August 28, 2013:
The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if [s]he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [s]he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.
The term “critical habitat” for a threatened or endangered species means— (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. (B) Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph. (C) Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.
The libertarian CATO Institute filed brief in support of Poitevent, regarding Unit 1 and the ESA’s complete disregard for the Commerce Clause:
…the FWS interpretation of the ESA is unreasonable and that this aggrandizement of federal power to regulate property goes beyond constitutional limits. The idea that land that is uninhabitable for a species is nevertheless “essential” to its survival is unmoored from even government logic.Put simply, the FWS effectively rewrote the ESA in a way Congress never authorized — and could not constitutionally permit. Even if one accepts that the ESA fits into Congress’s power to regulate interstate commerce — in which case critical-habitat designation is undoubtedly a necessary part of the scheme — that power has limits. Mere existence of land does not constitute “economic activity” under the Commerce Clause; if it did, all land in the United States would be subject to federal jurisdiction (as is the case in federal enclaves). Likewise, the regulation here doesn’t fit into the Necessary and Proper Clause. It’s not necessary because Unit 1 plays no role in the frog’s conservation; it’s not proper because it infringes on state sovereignty over land-use regulation.
Louisiana’s Attorney General also praised the case:
It’ll be interesting to see how this case will be ruled by SCOTUS, which has already proven to be divided over the issue—with the more conservative justices sympathizing with the plaintiffs and vice versa.
To get a full recap of this issue, check out Episode 5 of my podcast District of Conservation. We’ll keep you posted here at The Resurgent on whether or not it’ll be argued before the highest court in the land.