- The Washington Times - Tuesday, November 27, 2018

The federal government can’t designate land as a habitat for an endangered species on the expectation that the animals might eventually want to move there, the Supreme Court unanimously ruled Tuesday, delivering a victory to property owners.

In an 8-0 decision, the justices rejected the federal government’s attempt to designate roughly 1,500 acres in Louisiana as critical space for the dusky gopher frog, finding the species hadn’t lived there since 1965 and the area has since been used by a timber company, altering its landscape to be inhospitable to the frog’s return.

Chief Justice John G. Roberts Jr., who wrote the opinion for the court, said an area can’t be considered “critical habitat” for a species if the animal in question couldn’t actually live there now.

“Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat,” he wrote.

The dusky gopher frog originally lived in Alabama, Mississippi and Louisiana in longleaf pine forests, including the acreage in question in Tuesday’s case.

But urban development and timber plantations pushed the frog out into neighboring counties.

Now the federal government fears future events might sour the new habitat. The government sought to designate the original Louisiana land as a critical habitat for the animal’s future.

That would impose severe restrictions on what the owners could do with it — including derailing their plans for development. They said the economic loss could reach $30 million.

The justices, after rejecting the Interior Department’s arguments, sent the case back to the lower court to take a fresh look at the cost and benefits of the government’s designation of the land.

Edward B. Poitevent II, a landowner in the case, said the unanimous decision by the justices shows just how wrong the government was in its handling of their land.

“We won a great victory today for many people — my family, the citizens of St. Tammany Parish and the people of the United States,” he said.

Collette Adkins, an attorney for the Center for Biological Diversity, which intervened in the case, said she was disappointed in the ruling.

“The dusky gopher frog’s habitat protections remain in place for now, and we’re hopeful the 5th Circuit will recognize the importance of protecting and restoring habitats for endangered wildlife to live,” she said.

Karen Harned, executive director of the National Federation of Independent Business’s Small Business Legal Center, said the court’s ruling was a win for small business owners.

“The reality is that [Endangered Species Act] restrictions impose major costs, and can seriously impair the ability of a small business to continue operations or to expand,” she said.

Justice Brett M. Kavanaugh, who joined the court after the parties argued the case, took no part in the decision.

⦁ James Varney contributed to this report.

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