Memo to Supreme Court: Grant Cert in the Weyerhaeuser Case!

The government we live under does not resemble the one that is described in the Constitution. The principal reason for this is the power of federal regulatory agencies, which has grown explosively and is virtually unrestrained by Congress, the courts or even the president, who nominally controls the executive branch. The extra-constitutional administrative state now represents a grave threat to our liberties. The Supreme Court has an opportunity to begin the long process of restoring democratic, constitutional government in a case called Weyerhaeuser Company v. United States Fish and Wildlife Service, et al.

The facts of the Weyerhaeuser case are almost impossible to believe if you haven’t been following the federal government’s regulatory overreach. The Fish and Wildlife Service has designated an area in Louisiana (“Unit 1”) consisting of 1,544 acres as “critical habitat” for the dusky gopher frog even though not a single dusky gopher frog lives in Unit 1. Not only that, it is not possible for a dusky gopher frog to live in Unit 1!

As of 1965, there were only 100 dusky gopher frogs known to exist in the wild, none in Louisiana. It is not hard to understand why: the species has complicated habitat requirements, including small, isolated “ephemeral ponds” located in open canopy forest, for breeding; open canopy forest upland from such ephemeral ponds as non-breeding habitat; and open canopy uplands connecting the two, allowing the frogs passage. Oh, one more thing: this intermediate territory must not only have an open canopy, it must include “abundant native herbaceous species” of ground cover produced by frequent fires. The Fish and Wildlife Service has admitted that Unit 1 does not contain the features necessary to be habitable by dusky gopher frogs–which is consistent, of course, with the fact that none live there.

The land we are talking about is private property, owned by, among others, Weyerhaeuser Company. It is suitable for development; in fact, St. Tammany Parish, where Unit 1 is located, is the fastest-growing parish in Louisiana. The parish has filed a brief as an amicus which would almost be funny if the circumstances were not so outrageous:

The “critical habitat” designation removes said property from being developed and as such usurps the authority of the Parish as authorized by the State of Louisiana to manage growth….Management of the proposed habitat to sustain the frogs would ultimately require that the existing forest be destroyed and the establishment of a longleaf pine forest, which would require in turn that this forest be maintained by the periodic burning of the property in order to stimulate the growth of new planted longleaf trees, which is essential to converting the existing ponds back into “ephemeral” ponds for frogs to even have a chance to survive at the said property. This maintenance procedure along the abutting Louisiana Highway 36 corridor, which is a critical east-west transportation route, will create serious public safety concerns both for local and interstate commerce traffic as well as resultant health hazards from the thick smoke clouds for the nearby community of Hickory.

The Fish and Wildlife Service is required by law to conduct a cost-benefit analysis of the economic impact of the “critical habitat” designation. Even though it wildly underestimated the economic impact, Fish and Wildlife found up to $34 million in costs, and no economic benefits. No matter. It proceeded with the designation anyway.

How does such an outrageous regulation come about? Here, as is often the case, it is the result of the corrupt “sue and settle” tactic. Environmental advocacy organizations sue agencies like Fish and Wildlife, asking the court to compel the agency to, in this case, designate the land in question as critical habitat. The agency is only too happy to comply–the lawsuit is fundamentally collusive–and the court has little alternative but to rubber-stamp the parties’ settlement. “Sue and settle” is an area where reform is desperately needed.

A panel of the 5th Circuit Court of Appeals has upheld Fish and Wildlife’s designation of uninhabitable, privately-owned land as “critical habitat” for the dusky gopher frog. Judge Priscilla Owen, dissenting from that opinion, wrote:

There is a gap in the reasoning of the majority opinion that cannot be bridged. The area at issue is not presently “essential for the conservation of the [endangered] species” because it plays no part in the conservation of that species. Its biological and physical characteristics will not support a dusky gopher frog population. There is no evidence of a reasonable probability (or any probability for that matter) that it will become “essential” to the conservation of the species because there is no evidence that the substantial alterations and maintenance necessary to transform the area into habitat suitable for the endangered species will, or are likely to, occur.

Judge Owen concluded that the panel’s decision “re-writes the Endangered Species Act.”

Weyerhaueser petitioned for review by the full 5th Circuit court. Its petition was rejected, with six judges dissenting. Weyerhaeuser has now petitioned for a writ of certiorari in the U.S. Supreme Court.

The dusky frog case is so outrageous that one might assume that it is unique. Unfortunately, it isn’t. in 2014, the Fish and Wildlife Service designated 35% of all the privately-owned land in San Juan County, Utah, as “critical habitat” for the Gunnison sage-grouse, even though, according to the County’s brief, the sage grouse does not and cannot live on most, or all, of that land. In 2014, the Washington Post wrote that proposals to conserve the sage grouse “could cost up to 31,000 jobs, up to $5.6 billion in annual economic activity and more than $262 million in lost state and local revenue every year….”

It is vitally important that the Supreme Court begin the process of reining in the out of control federal bureaucracy. The Weyerhaeuser case is a good place to start. The Supreme Court should grant certiorari, and should reverse the 5th Circuit’s decision. This is how the Petitioners characterize the issue that is ultimately at stake–correctly, I think:

The core question is simple: Does the Endangered Species Act give the Federal Government, at its choosing, virtually unrestrained control over any and all land (public or private) throughout the United States?

Cases like this one are also a reminder of how fortunate we are that Donald Trump defeated Hillary Clinton, and how important it is that the Senate confirm his judicial nominees with dispatch. The alliance between the left-wing federal bureaucracy and left-wing federal judges is the greatest threat to our liberties that we face.