Forced Off His Land by a Frog

Edward Poitevent, a long-time Louisiana resident and proud business-owner, could not believe his ears when he was ordered to give up some of his land so that an endangered frog might breed there. The United States Fish and Wildlife Service (the Service) believes that Poitevent and his neighbors’ total of 1,600 acres of land (Unit 1) is a critical habitat of the endangered dusky gopher frog, and therefore must be designated as such. However, the frog has not been seen in Louisiana for decades, so it is probable that the evacuation of Unit 1 would have no effect on the dusky gopher frog population. While the concept of dedicating land to a creature that may not even live in the state may seem bizarre, Poitevent also finds that the Service has disregarded certain elements of the Endangered Species Act (ESA) that were meant to uphold landowners’ rights. Furthermore, the Service has overextended its authority by failing to have Congress review the critical habitat designation. While the suit, Weyerhaeuser Company v. United States Fish and Wildlife Service, was heard by United States Supreme Court this past October, the eight justices rendered a 4-4 verdict, meaning that lower court opinion was affirmed without the creation of a new Supreme Court precedent. Therefore, the Fifth Circuit Court of Appeal’s decision allowing the Service’s designation of Unit 1 as a critical habitat was upheld.

In 2016, the Fifth Circuit ruled that the Service had not misinterpreted the Endangered Species Act (ESA) in claiming sovereignty over some of Unit 1 as the petitioner had claimed. The ESA establishes a variety of laws designed to protect critically endangered species within the United States, with those defining “critical habitats” being crucial to this suit. According to the ESA, the entire area being seized or designated as a critical habitat must be necessary to the endangered species’ survival. This, however, seems to contradict the Service’s investigators, who state that only Unit 1’s ephemeral ponds (“small fishless pools in forested landscapes that lack a connection to a permanent waterbody and usually dry out by mid-late summer”) [1] are necessary for the frogs to live and breed. [2] Additionally, the court overlooked the vital detail that the dusky gopher frog would not be able to inhabit Unit 1 without modifications to the area, which is in direct violation of the ESA because a critical area must be habitable by the species without changes to the land. Moreover, and potentially more concerning, is that the Service overextended its own jurisdiction in declaring land to be a critical habitat without Congress’ required oversight. This necessary procedure was entirely omitted by the Service without any consequence suffered, which should have affected the case, but did not.

With researchers’ failure to find the frogs anywhere near Unit 1 since the 1960s, it seems illogical to force Poitevent to surrender much of his lumber mill and abandon his and his neighbors’ plans for a neighborhood development which would bring in additional income. [3] The petitioner believes that, “putting additional conditions on [Unit 1] could keep it from being developed, and devalue the property by as much as $33 million over the next 20 years.” [4] With no plans from the federal government to compensate the Unit 1 landowners in exchange for their losses, it is clear that Poitevent will suffer devastating economic consequences. Regarding this damage, take, for example, Tennessee Valley Authority v. Hill, in which the Court ruled that the ESA permits the preservation of endangered species and their critical habitats without any regard to the economic cost involved. [5] Seeing the flaw in this ruling, Congress quickly revised the ESA to require the consideration of economic factors when designating critical habitats so that, for example, one thousand dollars of injury is treated the same as one million dollars of injury. This amendment by Congress suggests that had there been governmental oversight, the Service would not have been able to make its designation of Unit 1 due to the potentially devastating damage that could be inflicted onto Poitevent. Another Supreme Court case, Czyzewski v. Jevic Holding Corp., which questioned why the dollar approximation of injury inflicted mattered to the judge of their bankruptcy case, sheds important insight onto the suit at hand. While in Weyerhaesuer, some third-party intervenors claimed that the amount of damage inflicted on the petitioner should not be challenged by the petitioner, as it cannot be approximated until after the Service designates the land, Czyzewski proved that even without the exact injury unknown at the present time, the court must recognize that even a small amount of money lost constitutes a damage and take this information into consideration when giving a verdict. [6]

Judge Owens, who dissented in the Fifth Circuit’s decision against Poitevent, argued, “If the Endangered Species Act permitted the actions taken by the Government in this case, then vast portions of the United States could be designated as ‘critical habitat’ because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species.” [7] Because the area in question must be habitable by the frog without modifications, one can understand that the Service’s decision is not protected under the ESA. This dissent demonstrates the Service’s reinterpretation of both the ESA and the definition of the word “habitat” to declare that any land that could possibly be modified to suit an endangered animal could be subject to designation as a critical habitat.

Ultimately, the affirmation of the Fifth Circuit Court of Appeals’ decision by the Supreme Court could have devastating consequences for landowners across the country. With the Service’s ability to designate land as critical habitats without worrying about violating the ESA, this governmental agency wields immense power over people like Poitevent. While the United States should continue its commitment to preventing the extinction of endangered species through the ESA, it must limit the ability of the Service to designate land as critical habitats by use of Congressional oversight. Otherwise, more Americans will be left vulnerable to losing their land without the landowner protections set in place by the ESA.

[1] “Wisconsin Department of Natural Resources.” Controlling Invasive Species. dnr.wi.gov/topic/EndangeredResources/Communities.asp?mode=detail&Code=CLEPH390WI.

[2] Liberti, Garion, and Tayler Woelcke. "Weyerhaeuser Co. v. U.S. Fish & Wildlife Service." LII / Legal Information Institute. September 28, 2018. Accessed January 05, 2019. http://www.law.cornell.edu/supct/cert/17-71.

[3] Barnes, Robert. "'They're Great Little Animals': The Dusky Gopher Frog Goes before the Supreme Court." The Washington Post. September 29, 2018. Accessed January 05, 2019. http://www.washingtonpost.com/politics/courts_law/theyre-great-little-animals-the-dusky-gopher-frog-goes-before-the-supreme-court/2018/09/29/b928b9b4-bc4f-11e8-8792-78719177250f_story.html?utm_term=.86994045d6d5.

[4] Idem.

[5] "WEYERHAEUSER COMPANY, Petitioner, v. UNITED STATES FISH AND WILDLIFE SERVICE, Et Al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit." https://pacificlegal.org/wp-content/uploads/2018/08/Weyerhaeuser-Reply-Brief-on-the-Merits-.pdf.

[6] Idem.

[7] "Weyerhaeuser Company v. U.S. Fish and Wildlife Service." U.S. Chamber Litigation Center. December 10, 2018. Accessed January 05, 2019. http://www.chamberlitigation.com/cases/weyerhaeuser-company-v-us-fish-and-wildlife-service.