On February 13, 2017, by an eight to six vote, the Fifth Circuit denied en banc review of the panel opinion in Markle Interests, LLC v. U.S. Fish & Wildlife Service.  The case dealt with the predecessor to the new regulations effective March 2016, but it is highly significant in determining the extent of Fish & Wildlife’s authority to designate land as critical habitat.

The case concerns the dusky gopher frog, an endangered species that now resides exclusively in Mississippi.  At one time, the frog inhabited land in St. Tammany Parish in Louisiana but has not been seen there for more than 50 years.  Nonetheless, Fish & Wildlife designated some 1500 acres of land in Louisiana as unoccupied critical habitat.

The rationale was that the Louisiana property had one essential condition for conservation of the frog:  five ephemeral ponds.  An ephemeral pond is one that periodically dries up and hence cannot support fish.  The frog uses the pond to lay its eggs safe from predatory fish.

The problem is that the Louisiana property is not currently habitable by the frog.  Approximately 90% of the property is covered with closed-canopy loblolly pine trees, which would have to be removed and replaced with another variety to make the area habitable for the frog.  Fish & Wildlife has no authority to compel private landowners to undertake these changes and there is no evidence that they will.

The opportunity cost to the landowners may be more than $30 million.  We expect a cert. petition.