Big property rights victory at the Supreme Court

The Supreme Court ruled in favor of a landowner who challenged the government's designation of 1,500 acres of land as "critical habitat" for an endangered frog species. 

Edward Poitevent sued the U.S. Fish and Wildlife Service, who said the land in question – in his family's possession for decades – was critical to the survival of the dusky gopher frog, even though the species had not inhabited the land since 1965.

Daily Caller:

"I am really overjoyed that an eight to nothing court agreed with me that the service's decision was absurd and nightmarish for property rights in the United States," landowner Edward Poitevent told The Daily Caller News Foundation in a Tuesday interview.

"We all actually thought something like this would happen, but what's really stunning is this is an eight to nothing decision," Poitevent said.

The Fish and Wildlife Service told Poitevent in 2011 his land, which has been in his family for generations, would be listed as backup critical habitat for the dusky gopher frog, which hasn't been seen there since 1965.  The only known domain of the frogs was a single pond in southern Mississippi as of 2001, but the government said the Louisiana zone was the only other possible habitat it could identify.

One small problem with Fish and Wildlife's decision: The land where the frog hadn't lived in more than 45 years had changed.

The government conceded drastic alteration to the land would be needed in order for the gopher frog to survive, including replacing thousands of trees and conducting controlled burns to kill off underbrush.

The government also said designating Poitevent's land as critical habitat could cost his family as much as $34 million, which doesn't include the cost to alter the landscape.

Poitevent and others sued, arguing the government could not designate land the frogs do not inhabit as "critical habitat."  They also said the service wrongly ignored the significant economic costs its decision imposed on them.

Thankfully, more rational heads prevailed at the Supreme Court.

Chief Justice John Roberts wrote Tuesday's unanimous decision, which largely sides with the landowners.

"Only the 'habitat' of the endangered species is eligible for designation as 'critical habitat,'" Roberts wrote.  However, he noted the 5th Circuit did not define the term "habitat" in its decision, and sent the case back to the appeals court with instructions to do so.

As such, the crux of Tuesday's ruling provides that only land that qualifies as "habitat" may be designated "critical habitat," but the exact definition of "habitat" remains unresolved.

The high court also agreed that the 5th Circuit should consider whether the Fish and Wildlife Service properly evaluated the burdens imposed on the landowners before marking the area "critical habitat."

It will be interesting to see how the 5th Circuit can justify defining the land as "habitat" for an animal that hasn't lived there in 40 years.

This is what happens when the federal government partners with "nonprofit" environmental groups to stick it to landowners.  The greens don't give a crap about private property, and they don't care much about human beings, either.  The dusky gopher frog is winking out of existence because it can't adapt to a changing landscape.  So the greens think nothing of forcing a landowner to alter his property to accommodate an animal already nearly extinct.


The empowerment of greens during the Obama administration is over.  There must be several cases like Mr. Poitevent's.  Some landowners in similar situations didn't have the money to fight the greens, and some were probably stymied by lower courts.  The bottom line is that this craziness of putting animals ahead of the needs and rights of humans should be ended.

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