H. Sterling Burnett: Frog Case Highlights Dangers of and Need to Reform the Endangered Species Act

By Deputy Chief EditorDecember 23, 2017

163 4 minutes read

Various people and groups are asking the U.S. Supreme Court to hear an appeal of and ultimately to overturn an appellate court decision concerning the 1973 Endangered Species Act (ESA) and the dusky gopher frog.

The case highlights the danger ESA poses to people’s property rights, which are guaranteed under the Fifth Amendment to the U.S. Constitution.

The ESA is arguably the most powerful environmental law in the nation. As written, it takes precedence over all other laws and requires the secretary of the interior to protect each endangered species—animals, insects, and plants—regardless of the costs.

Even a cursory evaluation of the Constitution reveals the federal government is not sanctioned to protect endangered species. Nowhere will you find the words “species,” “wildlife,” “animals,” “plants,” or “insects” in the Constitution. And if the government isn’t explicitly delegated a specific power in the Constitution, the exercise of that power is, according to the Constitution’s own provisions, supposed to be left to the states or the people therein.

In complete opposition to the Constitution, Congress decades ago circumvented these limits and argued it has the power to protect species under the interstate commerce clause, a ridiculous fiction the U.S. Supreme Court permitted the government get away with.

Few cases show the need to overturn ESA—or, at the very least, substantially circumscribe the government’s power under it—than the case of the dusky gopher frog.

In 2001, the U.S. Fish and Wildlife Service (FWS) listed the dusky gopher frog as an endangered species. At the time, only 100 adult frogs were known to exist in the wild, all in Mississippi. In response to a lawsuit filed by the Center for Biological Diversity, in 2011, FWS designated 6,477 acres stretching across Louisiana and Mississippi as “critical habitat” for the frog, thereby giving the agency the power to limit the uses of the land to help the species recover.

While this might on the surface seem within the intended purpose of ESA, there is a unique hitch in this case: The frog does not exist on the 1,544 acres of private land in Louisiana, has not existed there since 1965, and in its current condition, the land is not suitable for the frog’s inhabitation or survival. In other words, there ain’t no frogs there, and they can’t live there unless the landowners make costly changes to the land to make it suitable for the frogs.

FWS said it would allow the property owners to develop 40 percent of their property if they undertook changes to alter the remaining 60 percent to make it suitable habitat for the frog, estimating the required changes would cost the landowners $20.4 million. FWS said it would also allow owners to leave property in its current state, but by doing so, FWS would not allow any development, costing landowners $33.9 million in lost value. Talk about government extortion!

Forest products company Weyerhaeuser and other private landowners in Louisiana challenged FWS’ Louisiana critical habitat designation, and 18 states and a number of business groups—including the American Farm Bureau Federation, National Alliance of Forest Owners, National Mining Association, National Association of Home Builders, and U.S. Chamber of Commerce—backed their challenge.

Inexplicably, by a vote of eight to six, the U.S. Court of Appeals for the Fifth Circuit allowed FWS’ critical habitat designation to stand. As Fifth Circuit Judge Priscilla Owen noted in her dissenting opinion, FWS’ action was “unprecedented and sweeping” … “[It] re-writes the Endangered Species Act.”

Weyerhaeuser and the other landowners are currently petitioning the U.S. Supreme Court to hear an appeal of this case, and ultimately to overturn it. The Supreme Court is expected to announce its decision about whether to hear the appeal in January.

Let’s be clear what is at stake here: The dusky frog is not in commerce, much less interstate commerce, so the federal government should not have jurisdiction over the frog or the property/habitat in question in the first place. Perhaps more importantly to the general public is the fact that if FWS’ habitat designation is allowed to stand, it would be the first time ever an endangered species’ critical habitat designation included private land in which the species does not and cannot exist in the land’s current condition.

This is critically important, because under FWS’s expansive critical habitat designation, no person’s property is safe from being declared critical habitat for some endangered species; the government could force each and every one of us to expend resources to make our properties suitable for one “endangered” species or another.

Sound farfetched? Consider this: There are currently more than 1,650 species listed as endangered in the United States—with listings in all 50 states and the District of Columbia—but less than half, only 742 of them, have had critical habitat designated for their recovery. In addition, FWS has hundreds of ESA listing decisions pending, each of which would require the designation of critical habitat. And for those species without critical habitat, FWS has already stated future designations “will likely increasingly use the authority to designate specific areas outside the geographical area occupied by the species at the time of listing.”

For the sake of our liberty, our property, and the sanctity of the U.S. Constitution, the U.S. Supreme Court needs to overturn this gross expansion of federal power over private property. Whether the Supreme Court acts or not, President Donald Trump needs to direct Ryan Zinke, secretary of the interior, to overturn FWS’ novel, new critical habitat rule—a rule developed under the Obama administration—henceforth limiting critical habitat designations to land that is actually existing habitat for a species.

Finally, Congress needs to get off its collective duff and revise the ESA to ensure when species need private property to survive, the owners are justly compensated for the public service they are providing when their property uses are limited, as required under the Constitution’s Fifth Amendment.

H. Sterling Burnett, Ph.D. ([email protected]) is a senior fellow on energy and the environment at The Heartland Institute, a nonpartisan, nonprofit research center headquartered in Arlington Heights, Illinois.

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