By Emily Davenport – – Thursday, October 4, 2018

ANALYSIS/OPINION:

It’s a question that most Americans will never wrestle with: What if the federal government declared your privately held property off limits to you? This is exactly what has happened to landowners in Southeast Louisiana after designated more than 1,500 acres of private land as so-called “critical habitat” for the dusky gopher frog.

There are many problems with this action, not the least of which is that the frog does not actually live there. It hasn’t been seen in those parts for more than 50 years. In fact, it doesn’t exist anywhere in Louisiana, living solely in parts of Mississippi.

Add to that experts say the dusky gopher frog needs three things in its habitat to survive, but the land in question in Louisiana only has one of those three necessary features. That hasn’t stopped Fish and Wildlife officials from wanting to set aside a habitat in an area where they think the frog might like to live, in violation of Title 16 of the U.S. Code, which states that land can be designated a “critical habitat” only if it’s “essential for the conservation of the species.”

Since the species is not currently inhabiting the land, and could not live there without dramatic changes to make it habitable, it is tough to see how the land itself could be essential to the survival of the frog.

A debate over the fate of a dusky frog might be almost funny if it weren’t so serious.

The landowners have fought a pitched legal battle for nearly a decade, which will finally culminate soon when the U.S. Supreme Court hears oral arguments in the case Weyerhaeuser Company v. United States Fish and Wildlife Service. This is not a fight between developers and conservationists. In fact, the landowners and the Weyerhaeuser Co., the forest products company that is using the land, have made clear they support the Endangered Species Act and participate in numerous conservation focused activities.

This is a fight about the power wielded by unelected bureaucrats who have no check on how they abuse their authority.

This appeals court’s decision should make private landowners quake in their boots. What other decisions could federal agencies make that the courts will ignore? What path is then open to landowners to have their grievances heard? This is why nearly 30 organizations as varied as the National Association of Counties, the American Farm Bureau Federation and the National Association of Home Builders have joined 20 states in filing briefs in support of the owners of this land in St. Tammany Parish, Louisiana.

The concept of private property is sacred to Americans. The U.S. Constitution’s Takings Clause in the Fifth Amendment requires a government entity to provide just compensation when land is taken for public use, and many states have recently cracked down on abuses of this power altogether. But the actions by Fish and Wildlife threaten to cause very real economic hardship with hard-to-find, if any, ecological benefit to the endangered species.

If the lower court ruling is allowed to stand, it is not hard to imagine scenarios where vast portions of the American countryside could be designated as critical habitat for some other endangered animal. The economic impacts to landowners, especially across rural America, from future actions would be enormous. The U.S. Supreme Court should overturn this action and uphold property rights and the protections enshrined in the Constitution.

• Emily Davenport is vice president of the Pelican Institute for Public Policy, based in New Orleans.

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