UPDATE (Nov. 27, 2018): This morning, the U.S. Supreme Court released its decision in Weyerhaeuser v. U.S. Fish & Wildlife Service, unanimously ruling in favor of the landowners – reaffirming private property rights and striking a major blow against judicial deference to agency decisions - a key component of the 2014 Supreme Court decision striking down Obama-era so-called "climate change" regulations.
In the case commonly referred to as the “dusky gopher frog” case, the Fish and Wildlife Service declared more than 1,500 acres of property a critical habitat for the dusky gopher frog even though no one in the entire state of Louisiana has spotted the frog in over 50 years.
In other words, the federal government declared land that is not even” habitat” as “critical habitat.”
And then even worse, when the landowners challenged the designation, the federal government argued that courts cannot review their decision to designate the property. Fortunately for all private property owners, the Constitution demands otherwise.
In its unanimous decision, the Supreme Court agreed with the landowners and arguments presented by SLF in its amicus brief, that the Fish and Wildlife Service’s decision to not exclude the 1,500 acres from the critical habitat designation was judicially reviewable. The Court also agreed that the Fish and Wildlife Service could not designate the property “critical habitat” unless it could first show that the property was in fact “habitat.” The case now returns to the lower court to determine if the government can make such a showing.
Click here for U.S. Supreme Court decision
UPDATE (Apr. 27, 2018): Southeastern Legal Foundation today filed another amicus brief with the U.S. Supreme Court supporting property owners challenging the U.S. Fish & Wildlife Service’s illegal and unconstitutional decision to not exclude land from a critical habitat designation. In an opinion that flies in the face of Supreme Court precedent (Bennett v. Spear) and the strong presumption of reviewability, the Fifth Circuit found that while decisions to designate land as critical habitat are reviewable, decisions to not exclude land are not. SLF urges the Supreme Court to reverse the lower court’s decision.
Click here for SLF's Supreme Court brief filed in April 2018
UPDATE (Jan. 22, 2018): The Supreme Court has agreed to hear the case of the Dusky Gopher Frog. While the Court appears reluctant to address the constitutionality of certain provisions of the Endangered Species Act, it will address two questions: 1) Whether the ESA prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and 2) whether an agency’s decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.
WASHINGTON, DC: Southeastern Legal Foundation today filed an amicus brief with the U.S. Supreme Court urging it to hear challenges to the U.S. Fish & Wildlife Service’s designation of 1,500 acres of private land in Louisiana as “critical habitat” for the dusky gopher frog – a frog that does not and cannot survive or occupy any of the 1,500 acres. The designation is based on pure speculation that one day the gopher frog may occupy these lands. Despite the absurdity, the lower court deferred to the agency and upheld its designation, essentially taking the land without any compensation.
Click here for SLF's Supreme Court brief