Common Sense 8, Phantom Frog 0 in Federal Land Grab Case

The U.S. Supreme Court issued a unanimous 8-0 ruling on Tuesday, November 27, 2018 against the U.S. Fish and Wildlife Service’s attempted designation of private property in Louisiana as “critical habitat” for the benefit of the endangered dusky gopher frog. Had the agency succeeded, it would have denied the owners of the land from being able to develop it as they might choose without any compensation. What had made the case so unusual is that there was no evidence that the dusky gopher frog, which is found only in Mississippi, had ever lived anywhere in Louisiana during the past five decades.

Here’s how USAToday reported the outcome of the Case of the Phantom Frog at the Supreme Court:

In a unanimous 8-0 opinion by Chief Justice John Roberts, the justices overruled a federal appeals court that upheld the designation of more than 1,500 acres of forested land in Louisiana as “critical habitat” for the frog—even though no dusky gopher frogs reside there now.

“According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat,'” Roberts wrote. “Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat.”

The federal government could have avoided this outcome if it had restrained itself from seeking to use its regulatory powers to effectively take control of private property and compel its owners to modify it at their own expense, as the government desired to benefit the endangered species, and instead either outright purchased suitable land to provide as habitat or to use land it already owns for the purpose.

Instead, it took a unanimous Supreme Court decision to impose a small measure of common sense and restraint on a runaway federal bureaucracy.

Craig Eyermann is a Research Fellow at the Independent Institute.
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