Quietly, behind the scenes and with no political objective, Luther Strange has worked to assist private landowners from government intrusion. In many cases, the office of Attorney General (in conservative states) was the only check available to the inexhaustible thirst of the Obama Administration and the increasingly liberal court system that he appointed to infringe on the private property rights of landowners.
Here is one prime example:
In 2001, the United States Fish & Wildlife Service listed the Dusky Gopher Frog as an endangered species pursuant to the Endangered Species Act. Several years passed and in 2009 (only after the Obama administration took control and a lawsuit was settled with the Center for Biological Diversity, an environmental advocacy group), the Service, in a proposed rule making, designated an area of Mississippi to be critical habitat for the frog. This area was where the frog was currently located and the Service felt the need to protect the area to ensure the “conservation” of the species.
The environmental group objected to the proposed area complaining that it wasn’t suitable for the “recovery” of the species; a novel interpretation of the ESA’s statutory requirements. The Service however agreed to this new characterization and issued a final rule that not only included the acreage in Mississippi, but also acreage in Louisiana that admittedly did not have suitable habitat for the frog and had not seen this species in over 50 years.
The Louisiana land was owned and leased by Weyerhaeuser which brought suit in federal court challenging the critical habitat designation. The federal district judge ruled in favor of the Service and the case was appealed to the Fifth Circuit Court of Appeals in New Orleans. A three judge panel (two Obama and one Bush appointees) reviewed the case and upheld the lower court ruling on a 2-1 vote.
In the dissenting opinion offered by Judge Priscilla Owen (the Bush appointee) she stated “the majority opinion interprets the ESA to allow the Government to impose restrictions on private land use even though the land: is not occupied by the endangered species and has not been for more than fifty years; is not near areas inhabited by the species; cannot sustain the species without substantial alterations and future annual maintenance, neither of which the Government has the authority to effectuate, as it concedes; and does not play any supporting role in the existence of current habitat for the species.” She goes on to note that “if the Endangered Species Act permitted the actions taken by the Government in this case, then vast portions of the United States could be designated as ‘critical habitat” because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species…..the majority opinion’s holding is unprecedented and sweeping.” (Emphasis added)
After the panel’s decision, Weyerhaeuser then asked for the entire appellate court to review the case. Alabama Attorney General Luther Strange agreed with Weyerhaeuser’s position and Judge Owen’s analysis. He led an effort to bring 15 state Attorney Generals to jointly petition the court to support the request for the full court to review the case. His staff prepared the amicus brief that the state’s filed in the matter.
Unfortunately the request for rehearing was denied and now the case has been appealed to the United States Supreme Court. Alabama and the other states have continued to fight this case and have now petitioned the Supreme Court to take up the case.
If this ruling is not taken up and overturned by the Supreme Court it will stand as the law for the 5th Circuit jurisdiction and can be relied upon as precedent by other jurisdictions.
As Alabama’s Attorney General, Luther Strange has distinguished himself in working diligently to protect the rights of private landowners. The Dusky Gopher Frog is just one example of his efforts to curb the Government’s enthusiasm in utilizing federal laws, agencies and courts to direct land use and land management practices.
We have an opportunity to show our appreciation to Luther Strange. The election for United States Senate is next Tuesday, September 26th. AFA has endorsed Luther and he needs your vote.