Jefferson Policy Journal

Editor’s note: The U.S. Supreme Court on Monday announced it will accept the Louisiana ESA frog case for briefing, argument and decision.
“The essentially boundless authority granted the federal government by the Fifth Circuit [U.S. Court of Appeals] to control local land and water use under the guise of species protection conflicts with a plain reading of the Endangered Species Act.”
I spoke last week to the Illinois Association of Drainage Ditches and noted the ESA is a basic threat to farmers with drainage ditches on or close to their property in any state particularly in Iowa, Illinois and Indiana because of a case presently pending in the United States Supreme Court. It is a story you will not believe. Maintaining drainage ditches is a huge issue in the above-mentioned states and others. The ESA has basically been applied in the Far West. Now the ESA is likely to be applied when improvement work is contemplated on drainage ditches.
The question posed before the Supreme Court is shocking. Can the Department of Interior’s Fish and Wildlife Service (FWS) designate and take a landowner’s property as critical habitat, when the land is unsuitable as a habitat, has no connection with a protected species, and the species has not been seen on the property? The case of the “invisible frog” has been widely described in the press because it is hard to believe or understand.
The story begins in 2001 when FWS listed the Mississippi gopher frog as an endangered species. In 2010, the FWS issued a rule designating approximately 2,000 acres in Mississippi as habitat for the frog. In 2011, FWS expanded the radius for the protection of the frog by designating more than 1,500 acres of privately owned land in St. Tammany Parish, LA, because it was alleged the frog might have been at the sight in 1965.
The owners claim their land does not now nor never will in the future contain elements for the frog to live on their property. The owners had leased the land for timber operations and planned on developing home sites and businesses on the property.
In 2012, FWS renamed the gopher frog as the “dusky gopher frog.” FWS claims the landowners’ site “…could provide a refuge for the frog should the other sites suffer catastrophic events.”
Under the ESA, an economic analysis must be undertaken. On all the sites in Mississippi, the economic impact on the majority of sites was $102,000. The designation on the timber site in Louisiana was approximately $34 million over 20 years.
The case pending in the Supreme Court is Markle Interests, LLC v. The United States Fish and Wildlife Service.
That $34 million over 20 years is a pretty big economic impact, considering that the dusty gopher frog has never been found on the Louisiana property. Even the lower courts said the FWS determination that the 1,500 acres was critical habitat for the frog was “…odd, troubling, harsh, and remarkably intrusive [with] all the hallmarks of governmental insensitivity to private property.”
One judge dissented vigorously, and was concerned that a designated ESA area that does not have biological or physical characteristics that would support the dusty gopher frog was beyond the pale. The dissenting judge claimed, “Land that is not essential for conservation does not meet the statutory criteria for critical habitat.”
The majority opinion is dangerous for all landowners because it allows FWS and the Department of Interior “…to impose restrictions on private land that is not occupied by the species, and is not near areas inhabited by the species and cannot sustain the species without substantial alterations and future annual maintenance, that the government cannot effectuate… [and] the panel decision would unduly subject large areas of the United States to strict federal regulation.”
This case falls far outside the parameters of ESA and common sense. It is also an example of a government agency out of control and protected by a legal interpretation which allows the government’s decision deference when there is ambiguity in the statutory language.
The true tragedy of this case is the Trump administration’s Justice Department apparently is supporting the Department of Interior’s outrageous taking of private property.
(This article first ran in Farm Futures on January 22, 2018.)
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If I’ve learned anything through my life—whether growing up on my family’s fifth generation hog farm, or through my time representing the voters of an diverse rural, suburban and urban congressional district for seven terms in the U.S. House of Representatives—it’s this: what’s good for the goose is good for the gander. The same is true of making animal welfare reforms in the food supply.
I know first-hand how agriculture is under scrutiny from outside forces. And I know how frustrating that can be for all of us involved in production agriculture. I also know that American farmers are some of the most inventive, resourceful, hard-working folks in any sector of the economy. The American farmer straps on his boots and goes to work and when a problem arises, he fixes it. That’s what it means to be a farmer or rancher and good animal husbandry has been at the center of farming practices for generations.
The reality is, it’s not just about our views and values.  We have to pay attention to the values of our customers.  Many consumers these days just aren’t aligned with some of what happens on farms. I know, of course, that there are pros and cons to all types of production systems. But study after study show that consumers today want animals to be able to engage in normal behaviors and not be confined so severely that the animals cannot move.  I am speaking about practices such as cages in the laying hen industry and crates in the pig industry.  No farmer was trying to be hurtful to animals in using these systems, but the reality is, they are extreme practices and they are no longer acceptable to American consumers, including rural people.   An American Farm Bureau-funded study found that 95% of Americans think farm animals should be treated well. Another study, from the food industry consulting firm Technomic, found that consumers today value animal welfare over local, fair trade, organic and other top-of-mind issues.
So it’s no surprise that the biggest names in the food business are requiring animal welfare changes—companies like McDonald’s and Walmart and Kroger; companies like Cracker Barrel and Bob Evans.
Now I know it’s easy to view this shift as a problem. But farmers are great problem solvers, and many view it as an opportunity. This is why major pork firms like Virginia’s Smithfield are getting rid of sow stalls. It’s why egg producers like Rembrandt and Rose Acre are going cage-free. It’s why Perdue is launching aggressive animal welfare programs in conjunction with The Humane Society of the United States.
These moves make good business sense: after all, the least economical product type of product to produce is the kind no one wants to buy. Many of us often argue the need to let market forces prevail.
The American farmer has a rich tradition of adaptation and I have every confidence that more will continue rising to the occasion by progressing on animal welfare measures—rather than trying to slow them down—that’s good not just for the animals, but for consumers and their own bottom lines.
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