22 Jun 2018 Supreme Court Set for Ribbiting Property Rights Case

As the U.S. Supreme Court justices hand down the last of their high-profile decisions for the current term, property rights proponents are preparing for their fall term and a major case that could finally set boundaries on the currently unchecked power of the Endangered Species Act (ESA).

National Center for Public Policy Research Senior Fellow Bonner Cohen, Ph.D. told Farm Journal that a favorable decision for the plaintiff could seriously blunt the “ESA battering ram.”

The case of Markle v. U.S. Fish and Wildlife Service (FWS) deals with the designation of “critical habitat” for the Mississippi gopher frog on, among other places, 1,500 acres owned by Edward Poitevent in St. Tammany Parish, Louisiana. According to Farm Journal’s AgWeb, the Mississippi gopher frog (or dusky gopher frog, as it was later termed), had not been seen in the state since 1967. Furthermore:

FWS had no power to introduce the frog species on Poitevent’s Louisiana land, or convert the land to make it suitable for the frog or force Poitevent and his co-owners to restore the land to accommodate the creature. At a bare minimum, Poitevent’s land would need to be clear cut, replanted with longleaf pine and consistently managed with controlled burns. (All of this would breach a timber contract that runs until 2043 with a third party covering most of the land.)

But the designation was made, and AgWeb noted “FWS created a paper haven for a creature it knew would never live on the very land defined in the designation.” Mark Miller, Poitevent’s lawyer and senior counsel for the Pacific Legal Foundation added:

People can’t believe the government can lock down private land for a species that doesn’t live there, hasn’t been seen there in 50 years, and would die if it was put there without dramatic property change. Think about the implications and follow the logic: Any land in the entire country can be declared critical habitat. Anywhere.

In explaining the big-picture problem of government abuse of the ESA, the National Center’s Cohen explained to AgWeb:

[The] ESA is an all-powerful statute that historically has been enforced by an entrenched bureaucracy. In the frog case, FWS targeted Poitevent’s land already knowing it’s unsuitable, and that clearly shows that FWS bureaucrats fully recognize the unbridled power of the ESA statute behind them.

The bureaucrats that make these decisions, as in the Poitevent case, are unelected and unaccountable to anyone. The frogs, flies and mice are only a means to an end because the cases are really about control. The agency officials go after farming, ranching, timber or any activity they choose, entirely backed by an ESA battering ram.

The case is expected to be argued before the justices as early as October.