U.S. Supreme Court's First Case: Frog-Infatuated US Govt. v Private Property Rights

P. Gardner Goldsmith | October 2, 2018

The Supreme Court of the United States opened its spectacular new session by hearing a case so absurd, many people might wonder why it’s a matter for the courts.

It’s a matter for the courts because the Fish and Wildlife Service exists, and repeatedly infringes on private property rights, contrary to the supposed raison d’etre of government itself.

Of course, many perspicacious thinkers will recognize that the very existence of the state infringes on the right to private property and self-determination, but that’s a deeper philosophical matter. The case at hand this week is a practical example of how far astray the US government has veered from the original rational for its existence, and offers a great lesson about how environmental concerns are best handled through private property interests, and not top-down mandates from bureaucrats and politicians.

The one-justice-short SCOTUS yesterday heard the case of Weyerhaeuser Company v US Fish and Wildlife Service, a bizarre conflict between private property owners and the government over whether the feds will literally invade their private property and deposit “Lithobates Sevosus,” or the “dusky gopher frog,” on their land.


There are about 150 dusky gopher frogs alive in the U.S. today. Their habitat is located in five Mississippi “spring” ponds that dry up in the summer months, thus preventing fish from living in the locales. They’ve got no predators – if only we could say that when the tax agency calls.

The habitat is not the area in dispute. In fact, the area in dispute is located in Louisiana, on land owned by Edward Poitevant.

The U.S. government wants to transplant the frogs onto Poitevant’s land.

Yep. The question before the SCOTUS is whether or not the federal government has the power to actually move a group of frogs from one area and deposit them on private property – property that the owner is renting to the forestry company Weyerhaeuser for logging.

Anyone want to bet that the SCOTUS members will not get to the bottom of the issue? Anyone suspect that they will concentrate on Nixon’s wrong-headed Endangered Species Act of 1973 rather than the text of the Constitution?

Anyone suspect that they will cite precedent and the statute that created the dreaded US Fish and Wildlife Service in 1940 under the totalitarian figure of Franklin Delano Roosevelt, rather than read the enumerated powers granted to Congress by the Constitution, powers that do not, in any possible way, include a “Fish and Wildlife Power,” or the power to control any lands other than territories or military garrisons?

In fact, as the SCOTUS Blog tells us, this is precisely what they’re doing. According to the Blog the “big issues” are:

(1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

So an agency of a government that was supposedly created to protect lives and private property from attacks by other nation-states, that was supposedly created to “insure a republican form of government” (as the Constitution says) in the various states, is ready to invade private land, and the SCOTUS is wondering whether this can be done IF the land is “neither habitat nor essential to species conservation”? How about dropping the caveats and being clear? The US government has no place in this. And the second question before the court (based on their own preference) is utterly useless from the standpoint of the Constitution and its supposed existence.

The validity of the Endangered Species Act is not being questioned. The anti-constitutional nature of the Fish and Wildlife Service is off-limits.

But, not only is there absolutely no enumerated power granted to Congress to handle fish, wildlife, or the habitats for them, getting the government involved inspires unintended consequences uniquely caused by state intervention.

As Tate Watkins notes for Reason:

The Endangered Species Act makes it illegal to harm not only an endangered species but also its habitat. This produces perverted incentives. Consider the case of the red-cockaded woodpecker, which has been listed as endangered throughout much of the U.S. South for decades. Landowners in North and South Carolina now harvest timber early to make sure their land never contains the old-growth pines that are prime habitat for the bird.

And who is to say that the “Endangered Species Act” is protecting anything that people value? The only way we can know this is to find out how real people value the animals on their land, and by the prices they place on damage to their private property.

As I wrote in a previous piece about California Governor Jerry Brown’s move to “protect” the oceans by passing a silly, fascistic “straw statute” forbidding restaurateurs from offering plastic straws to customers, the oceans get littered because there is no private property system to manage them. In fact, the ancient, Natural Rights concept of private property respect is the most positive driver for resource protection, for it is only through private property respect that people can make claims for damage to their land, water, or air rights.

The infringement of Mr. Poitevant’s property rights is a logical consequence of the lack of respect all governments have for private property. That’s a philosophical truism.

But at least the SCOTUS Justices could operate from a standpoint of the Constitutional limits that were supposedly put on this monstrosity of the U.S. government when they hear cases like this.

Unfortunately, they won’t.

Welcome to the USA. Enjoy your rights.