Critical habitat land

I think this is just crazy.

The way I understand it......
The U.S. Fish and Wildlife Service designated 1500 acres near me as critical habitat for a endangered frog.
The catch;
They admitted the land does not now; and never has been home for the frog.
They also admitted the land is not suitable habitat for the frog in its present condition.
In fact the land would only be suitable habitat if there was controlled burns and re-vegetation that they can not force the land owner to do.

The case went to the 5th Circuit court and they agreed with the U.S. Fish and Wildlife Service.
They are now trying to get the U.S. Supreme Court to hear the case.

It seems to me with this law precedent the government could take any land and say it could under certain conditions be critical habitat land.

Read the story and see if you come to the same conclusion.

Copy and pasted from the lawyers web site......

Status:
Briefing before the Fifth Circuit Court of Appeals was completed on March 9, 2015. Oral argument was held on June 2, 2015. On June 30, 2016, the court held 2-1 that the Service can designate areas that do not currently qualify as critical habitat, and will not foreseeably serve as critical habitat, and are unoccupied by the species, nevertheless may be deemed ?essential? to the species? conservation and therefore eligible for designation as ?unoccupied critical habitat.? The joint motion for rehearing en banc filed in the 5th Circuit on July 29, 2016. On February 13, 2017, the Fifth Circuit denied rehearing by the full court. The case will be petitioned to the U.S. Supreme Court.

Summary:
Can federal officials label private property as ?critical habitat? for an endangered species, when the land is acknowledged not to be usable for the species, and may never be usable habitat?

This is what the U.S. Fish and Wildlife Service has done in the matter of the Dusky Gopher Frog in the Gulf Coast Region. In June, 2012, when the agency designated ?critical habitat? for the species, regulators stretched the Endangered Species Act beyond any previous interpretation by including 1,544 acres of private property in St. Tammany Parish, Louisiana, that is manifestly not suitable for the frog.

In fact, the Service itself admits as much. The designation of this forested area is based on pure speculation. The Service hopes the land might someday be managed by private parties for the species? conservation. However, the only way to make this area suitable for habitat is through controlled burns and revegetation, which the Service admits it cannot mandate on private land.

PLF is representing the property?s owners in challenging this unjustified federal targeting of their land. Under the ESA, critical habitat must actually contain the physical and biological features essential to the conservation of the species. If property can be designated even though it isn?t usable as habitat, there are no limits on the amount or location of private land that can be roped off by federal decree. Regulators can impose restrictions on anyone?s property, anywhere ? merely by claiming it could someday, in some speculative way, be used for species recovery.

Controlled burns=insanity

The 'Waters of the USA' rules the EPA has waiting to place upon us are much more far reaching that this.

Hang on to your seats. If the govt doesn't take your seat away too......

Paul

The Pacific Legal Foundation is very good, they don't lose very often. Hopefully they win in the Supreme Court. Steve

Before it's taken to the supremes, it should be done after the vacancy is filled. Stan

More rule by fiat that we are trying to get rid of. Another power grab, just like WOTUS.

WOTUS is a particularly egregious abuse of Federal power.

(quoted from post at 22:00:27 02/24/17) Controlled burns=insanity

Click to expand...

Actually, controlled burns have been and continue to be a valuable management tool. Many farmers burn their crop residues and then till all those nutrients back into the soil. In forestry, controlled burns are often done as a way to prevent such massive, out-of-any-possible-control wildfires.

We live in a wetlands area and I've seen times when the grass was dying, yet the water table was so high that you would leave behind a wet footprint with each step. So in our area, burns happen quite often. In more arid regions, the best approach may be to selectively remove brush by mechanical means.

We have an old and VERY drafty farmhouse, so needless to say we're not thrilled whenever there's a burn within 10 miles of us when the wind blows smoke our way. On the other hand, people up here (for the most part) are very good about doing controlled burns the right way.

Who owns the land?

Remember, we have a new Sheriff in town. He's going to put a hold on EPA stupid regulations & rid of a lot of them. Eventually, we will have a constitutional Supreme Court that will follow the laws, not make there own.

Different, but similar- like how our assessor could value a little landlocked piece of wooded gully edge as a prime building lot- for, in her words, "what it could be"!

Fortunately this was a local issue, and the review board members have some sense. Let's hope it's not too late to correct course on the national level.

OK, so it seems Fish & Wildlife's argument is the land in question contains certain ponds required for the frog's survival. Which is the key point around which the case revolves: Does the land contain one or more unique features required for a species' survival? <a href="http://abcnews.go.com/US/wireStory/appeals-court-hear-dusky-gopher-frog-case-45477882">http://abcnews.go.com/US/wireStory/appeals-court-hear-dusky-gopher-frog-case-45477882</a>

It seems to me it will be a very uphill battle to convince SCOTUS to hear the case. There are plenty of court precedents in the area of eminent domain that have determined the government can do pretty much whatever it deems necessary when it comes to taking private property, or restricting what landowners do with their property. Unless the plaintiff can show its case treads new ground, the Supreme Court is unlikely to hear the case.

I disagree. Controlled burns are a very effective management tool. Watch the news and you will see every year the effects of a no controlled burning policy. Wild fires cause so much damage because the understory has been allowed to accumulate until the fires that WILL occur either man-made or lightning start an uncontrollable fire. I have about 70 acres of longleaf pines I do a controlled burn every 2-3 years to keep the available fuel to a level so when it does burn it is not destructive. Sid

Markle Interests LLC owns the land.
It is under a long term timber lease by Weyerhaeuser.

Yes!, especially if the new sheriff also gets to appoint up to possibly 3 more justices. There are 3 more whose age is at or near the average age for retirement for a supreme court justice. There is a rumor that a judge will announce retirement after the Gorsuch appointment. This is only a rumor. However if you were a conservative judge nearing ret irement, (or natural death age) wouldn't you want to retire when your position would be filled by another conservative? This is a sure thing for the next 4 years, and possibly 8 years. We'll have to wait and see.

Mark I am not personally involved with the case so I know only what I hear on the news.

But yes the F&W service states the land has some wet spots or "ephemeral ponds" that dry up in the summer.
This means the wet spots can not support fish. And that is one key factor for the frog.

But the F&W service also states that even though the land contains these wet spots they will not support the frog in their present condition.
Mostly it has a tree canopy that would have to be cut down. And the F&W service can not force the land owner to cut the trees down.
Even if the land owner did cut the trees down; that will most likely happen since the land is under a timber lease; the trees would naturally grow back with no help from the land owner.

Hence the fight.
If the land owner would cooperate the land "could" become suitable habitat at the land owners expense.
But since they can not force the land owner to cooperate the land will never support the frog.

I take that as my land will not support XYZ squirrel or bird because it is 1000 acres of hay field and pasture.
But if I planted a forest of this particular tree (at my expense) that does not presently grow on my land; my land would then support the squirrel or bird.

Thats why the EPA needs to slow down and taske a longer look at things they would like to control ALL land

On controlled burns of farm land, that practice was outlawed in my county. The predominant Houston Black Clay requires the stubble to assist
in water management and soil texture for percolation (aka humus). Burning is easy for the guy leasing the land but useless for the land owner
and really useless for the renter too if he has a long term lease on the property. Besides it pollutes the air.

On the gobble up the land for idiotic purposes, I think the past administration was "hell-bent-to-leather" bent on gobbling up all he could get
his hands on.

John, I understand the plaintiff's position. My point is only that unless this case breaks new ground, it is very unlikely to be heard by the Supreme Court. The court only hears about one percent of the cases submitted to it. SCOTUS is not going to listen to a case that rehashes settled law, regardless of the merits of the case in question.

Louisiana is an "Eminent Domain" state. That means a government agency can take any land it wants for any reason it wants and the actual taking is usually upheld in court. It is only the amount of payment that sometimes gets changed.

Only way to be safe from this sort of nonsense is to live in a state that does not allow this sort of taking. Like Florida.

If land owner is not required to alter his land in any way, what is the disadvantage of being designated a "critical habitat?

The disadvantage is once classified as critical habitat it will always be critical habitat.
While the land is under a long term timber lease now no one knows what the future will bring.
Especially since this parish is one of the fastest growing in the state and maybe nation.

You have a very good point Mark.
Maybe that is why the plaintiffs lawyer is arguing that this does break new ground.
His argument is that never before has anyone deemed said ground critical habitat if the species does not live there now.
And never before has said ground been deemed critical habitat because it contains one of three things a species must have to survive.

I could understand if the frog lived there now; or even if the land in its natural state could support the frog if it was put there.

(quoted from post at 02:45:02 02/25/17) More rule by fiat that we are trying to get rid of. Another power grab, just like WOTUS.

WOTUS is a particularly egregious abuse of Federal power.

Click to expand...

I think that WOTUS is going to go away sooner rather than later. I know the admin. plans to fire over half the EPA personnel (I would much rather they lock the doors and fire every damned one of them) and I think that property rights will be restored to many people also.

Folks need to make sure to get the attention of their representatives to get the info. to the administration that people are hurting from the illegal actions of the last administration. I am sure praying that we can erase the horrid actions of the last 8 years.