Old Regulations Persist

Regulations regarding Land Law and the usefulness of affected land can block expensive plans, and shatter dreams. Many an unwitting land-buyer has found out the hard way that conservation efforts on behalf of a plant or animal will almost always outweigh benefits to the human owner of the land. Antique regulations, though made meaningless by uncontrollable environmental changes, still carry the same power as when they were first enforced.

Though they often begin with the best of intentions, any given regulation can outlive its usefulness. In this case, a rule to protect the habitat of a particular species, the Dusky Gopher Frog, was enacted by the United States Fish and Wildlife Service for a specific area of land when that land actually hosted the living amphibians. Since then, many decades have passed. Meanwhile, the frog has either died out in that region, or hopped away because no dusky gopher frogs have been seen there since 1965.

Fifteen hundred acres of private land in Louisiana had been long-designated by the US Fish and Wildlife Service as “critical habitat” for the endangered dusky gopher frog. However, efforts over time to track the frog on the land revealed that none had been present since 1965.  Even so, the old rule persisted, thus no alterations of any kind could be permitted on that 1500 acres.

Land is valuable. This land is no different. The owners desired to capitalize on the land by developing for all things civilized – homes, businesses, whatever… But, development was blocked by an old ruling protecting a species no longer there. Requests for a waiver of the rule were rejected. Due-process came next, as the owners sued the government.

To shorten the story, on November 27, 2018  the U.S. Supreme Court handed down a decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service, giving a huge victory to land developers across the country. In the decision written by Chief Justice John Roberts, the Court explained that whether the 1,500 acres could be designated “critical habitat” depended on whether the area was indeed a habitat for the frog. Meaning: A landowner can’t be forced to protect life that isn’t there.

This is a happy ending, but not all such cases will end so well if at all. Be careful when buying land. Ask every regulatory authority if there are any restrictions prohibiting development of or building on any land you might buy, before you buy it. An answer of, “none that I know of,” is not a reason to stop asking, but a signal to move on and continue asking.


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