More often than not, the Supreme Court gets reported on for the controversial 5-4 decisions that portray the Court as a deeply divided institution along political lines. However, it is in the unanimous decisions in which the Court’s wisdom is on full display.
Senior Attorney Mark Miller of Pacific Legal Foundation described such a case in which he partook, Weyerhaeuser v. U.S. Fish & Wildlife Service (2018), which “was a case that arose from a requirement of the Endangered Species Act where the US Fish and Wildlife Services (USFWS) has to declare what is considered an endangered species' critical habitat. If that land is not set aside to protect that species, then that land will be covered to conserve which would get a species away from being endangered.”
The administrative agency took liberal steps in exercising its authority that it was vested under the now defunct statute: “Initially, USFWS claimed that the habitat of the Mississippi gopher frog, as the name would lead you to think, is in Mississippi and that you need to protect land in Mississippi to allow the frog to repopulate.
Some time after that, they then thought that they need to protect land elsewhere in the case of a cataclysmic event that it would have to be relocated somewhere else. So, part of the back-up land was roughly 50 miles away in my client’s property in Louisiana.
On his land, 1,500 acres had been set aside to be a tree farm leased by Weyerhaeuser Co., and that was the land where USFWS had declared a critical habitat.” This case highlights the dark side of the administrative state that modern American political culture has rebranded as “deep state”.
In Weyerhaeuser, the “deep state” acted in a repugnant way. As Miller put it , “They went through the trouble of changing the name of the frog from the Mississippi gopher frog to the dusky gopher frog to throw off the scent of how ridiculous this was. Basically, what we would now need is a permit from USFWS to do anything on the land, which they most likely would not permit.”
This case, and others like it, highlights the lack of transparency that the administrative agencies engage in when the interests of the state or the bureaucrats(s) are served, as opposed to those of the private individuals who the state is supposed to serve.
It presents the spectator with yet another exhibition of how the might of the American federal bureaucracy quashes the concerns of individuals as little more than lesser mitigating factors around a new administrative rule. “
What was so obnoxious about this case was that this land was never going to sustain the frog and there was no land nearby with which to combine it. It’s about the government having the power to take your property and then never compensating one for it. In short, one can say they really want to have their cake (that is, have as much power as possible) and eat it too (by not paying you).”
The main takeaway from Weyerhaeuser is that, according to the author, “it forces the government to be much more specific and tailored in its regulatory decision-making and prompting administrative oversight into clearly defining what is and is not a ‘habitat.’
It forces the government to show its cards and not hide behind vague statutes and interpretations.” Although such a victory occurred in the third branch of the federal government, this is but one more instance where “the Swamp” has begun to circle the drain.
(Michael Cozzi is a Ph.d candidate at Catholic University)
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