- - Tuesday, January 9, 2018


The Mississippi gopher frog (or the “dusky gopher frog” in official federal parlance) may soon get his 15 minutes of fame, but the frog deserves better than being a pawn in a case that pits an overreaching government agency against property owners. The U.S. Supreme Court has been asked to take a momentous federalism and property rights case because its ramifications will extend far beyond the fate of a frog.

The case the court should take would answer an important question. The stakes in Weyerhaeuser v. U.S. Fish and Wildlife Service are plain: Does the Endangered Species Act give the federal government, at its choosing, virtually complete control over any and all land, public or private, throughout the United States? The bureaucrats at the Fish and Wildlife Service, ever eager to claim this ultimate turf, says it is only looking out for the interests of the frog. Will the High Court consider the interests of the rest of us?

This classic example of the strategy of sue-and-settle concerns the 2001 endangered species designation of the  dusky gopher frog, the Louisiana land that the Fish & Wildlife Service claims is the frog’s “critical habitat” even though it concedes it’s land on which the frog cannot survive, and the demands that the Fish & Wildlife Service has imposed on owners of that land.

Contradictions leap from the lily pad. The frog, a native of Mississippi that immigrated to neighboring Louisiana, has not been seen on the land designated its “critical habitat,” or anywhere in the state, since 1965. By the wildlife services’ own admission, the endangered frog cannot live on this land as it exists today. The frog needs “open canopy forest,” upland from but near “ephemeral ponds,” wet in spring and dry the rest of the year, “maintained by fires” and have “abundant herbaceous ground cover.”

The Fish and Wildlife Service demands that landowners level the current forest, replace it with trees pleasing to the frog, and then occasionally set it on fire, with no concern for nearby houses and 55 schools. This project would by federal estimate cost $20.4 million. If the landowners refuse to go along, the federal agency says it will bar all development of the property in an expanding suburb of New Orleans. The wildlife service says the landowners will ultimately pay out $33.9 million.

The U.S. 5th Circuit Court of Appeals in New Orleans earlier upheld the constitutionality of the shakedown, giving the wildlife service nearly limitless power to designate any state, local government or private land anywhere as critical habitat essential for preservation of an endangered species, whether the species can live there or not. The U.S. Interior Department agency has made clear that if the appeals court decision is upheld, it will use this authority to declare much more unoccupied and un-occupiable land as “critical habitat.”

The U.S. government has rarely before asserted such absolute authority over private property. This is the opportunity for the U.S. Supreme Court to strike a blow for the law, for justice and for fundamental freedoms of the people. We hope the Supreme Court takes the Weyerhauser case.

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