Supreme Court reversal a win for property rights |

Supreme Court reversal a win for property rights

The U.S. Supreme Court reversed a lower court ruling that upheld an Obama-era restriction on private property in a unanimous decision. The previous ruling allowed the federal government to designate land as critical habitat for an endangered species, the dusky gopher frog, without finding that the land constitutes habitat for the species.

According to Kansas Attorney General Derek Schmidt’s office, the Supreme Court also allowed a challenge to the federal government’s decision not the exclude a tract of land from the critical habitat designation to proceed, reversing the 5th Circuit’s holding that the government’s action was not subject to judicial rule.

Schmidt praised the decision.

“This ruling is a victory for private property rights and against heavy-handed federal overreach,” Schmidt said. “It would seem to be common sense that the federal government cannot designate land as ‘critical habitat’ when the land is not ‘habitat,’ but that is precisely what the lower court allowed the federal government to do. This decision confirms the common-sense view that the government may not infringe on private property rights unless it adheres to the protections for those rights that the law provides.”

According to the Supreme Court opinion, the dusky gopher frog was listed as an endangered species in 2001 with designated habitat in St. Tammany Parish, La., although no frogs had been documented in the area, or even the state, since 1965. The area, heavily timbered, was deemed unoccupied critical habitat due to its rare breeding ponds and its proximity to existing frog populations. A report commissioned to determine the economic impact of the proposed critical habitat designation concluded that the designation would bar future development, depriving the owners, Weyerhaeuser and family landowners, of up to $33.9 million. The Fish and Wildlife Service concluded that the potential costs were not disproportionate to the conservation benefit and designated the area as critical habitat for the dusky gopher frog.

The owners of the property sued, contending that the property was closed-canopy timber and could not be habitat for the frog known to live in open-canopy forests. Further, according to the decision, the owners argued that the service had not adequately weighed the benefits of designation against the economic impact. Weyerhauser and the family landowners argued in court that the designation should be vacated because the property could not be critical habitat for the dusky gopher frog because the frog could not survive without the current closed-canopy forest being replaced with an open-canopy forest. The District Court upheld the designation, now overturned. In the opinion of the court, only the habitat of an endangered species can be designated if it is also habitat for the species.

Kansas and 19 other states filed a friend-of-the-court brief in support of Weyerhauser and the other owners. Kansas producers have long been plagued by ongoing removal and relisting of the lesser prairie-chicken from the Endangered Species Act List of Endangered and Threatened Wildlife. ❖

— Gabel is an assistant editor and reporter for The Fence Post. She can be reached at or (970) 392-4410.


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