The first day of the U.S. Supreme Court’s current session opened Oct. 1. Again, the episode shows us why we need a full nine-judge bench. The court was staffed with eight judges for nearly 18 months. Then Judge Neil Gorsuch was added and now with all the manufactured political controversy around Judge Brett Kavanaugh, we could go through another dry spell. I get the politics of the day. I just don’t understand the tactics of the day. Politics is just a downright dirty business, which affects 320 million souls.
The very first case was important to agriculture and private property rights and of course involved the Endangered Species Act (ESA). The court was at an impasse with a 4-4 split decision, which sends it back to the lower court. Imagine that. This also demonstrates once again why the ESA law needs some changing.
This case was about a little brown frog, the dusky gopher frog, of which there are about 100 frogs remaining. The frog was placed on the endangered species list in 2001 and the U.S. Fish and Wildlife Service (FWS) developed a management plan in 2015, which seems like a long time to develop the plan.
FWS has designated about 1,500 acres of private land in Louisiana as critical habitat. The landowner has around 45,000 acres in the tract and the FWS wants just 1,500 for critical habitat. There are currently no frogs there and no one has seen one there since 1965. The closest frog population is about 50 miles away in Mississippi.
The property owner currently has the property leased to Weyerhaeuser for timber production and the owner plans on other development of the property. So now FWS comes along and says we need your land for the frog. Weyerhaeuser is asking the court whether the federal government can designate private land as “critical habitat” when it’s not suitable habitat at all.
FWS wants to claim private property as critical habitat, which would require active management of the critical habitat. The agency claims that they based their findings on the possibility that the land could be converted to suitable habitat by burning down trees, planting different ones and creating ponds to provide breeding sites.
The judges had some interesting questions. Justice Elena Kagan said the ESA could not have preferred extinction to development of new habitat, even if modifications are required, “…it is a counterintuitive result that the statute would prefer extinction of the species to the designation of an area which requires only certain reasonable improvements to support the species.”
Chief Justice John Roberts said the key is how much the land must be altered and at whose cost. “If you have the ephemeral ponds in Alaska, you could build a giant greenhouse and plant the long-leaf pines, and the frog could live there.” He also said, “In other words, there has to be presumably some limit on what restoration you would say is required.” Then Justice Samuel Alito said the question is not whether the frogs will become extinct. “The question is, who is going to have to pay and who should pay for the preservation of this public good?”
The judges were either pro-government or pro-private property rights, which is kind of scary that we have such a distinct ideological split. Meanwhile, the landowners can’t do much with their private property, which they claim is suffering a loss in value of $34 million. It makes one wonder how much the FWS would spend to alter the critical habitat. Seems to me, if the habitat needs drastic changes, it’s not suitable habitat at all. The only attribute the land has is empirical ponds. The frog wouldn’t be able to survive under current circumstances.
The government hasn’t offered to buy the property or indicated that they would pay for any land alteration. They say they are willing to partner with the landowner but that is apparently through easements or land banks around the state.
The feds essentially offer no real incentive to landowners to help the frog or many other endangered species, which takes us back to amending current ESA laws to provide real incentives to landowners to be part of the conservation process. Currently 70 percent of ESA habitat designations are on private property, which is a problem. Right now, FWS claims the property is crucial habitat, and they hide behind the law.
With the spectacle we all witnessed in Washington last week, it has to make you concerned about the rule of law and how it works for everyone. — PETE CROW
