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Divided Fifth Circuit Court Decides Areas Uninhabitable By a Species May Nonetheless Be Designated that Species’ ‘Critical Habitat’ under the ESA

The Fifth Circuit Court of Appeals has decided, by an 8-6 vote, to deny a petition to rehear en banc an earlier 2-1 decision by a panel of the court holding that under the federal Endangered Species Act (ESA) the U.S. Fish and Wildlife Service (FWS) may designate as “critical habitat” of a listed species areas that are not only unoccupied but also uninhabitable by the species. The majority in Markle Interests, L.L.C. v. U.S. Fish and Wildlife Service issued its ruling without a written opinion, but the dissenting judges offered a biting 34-page dissent. Markle Interests has signaled it will ask the U.S. Supreme Court to review the case. [Markle Interests, L.L.C., et al. v. U.S. Fish and Wildlife Service, et al., ___F.3d___, Case Nos. 14-31008, Cons. with 14-31021 (5th Cir. Feb 13, 2017).]

In 2010, the FWS designated critical habitat for the dusky gopher frog. Included in its designation was a 1,544-acre site not occupied by the frog. The site, moreover, contained only one of the three physical and biological features the FWS determined necessary for dusky gopher frog habitat, several ephemeral ponds that could support the frog’s reproduction. Those ponds, however, were surrounded by upland forest that (absent prescribed burning and other voluntary measures by the landowners to create habitat and introduce frogs) the FWS admitted was “unsuitable as habitat” for the frog.

Markle Interests and other owners of the site sued the FWS seeking to invalidate the critical habitat designation. The trial court ruled in favor of the FWS, and the Court of Appeals, 2-1, affirmed that ruling. The panel majority deferred to the FWS’s interpretation of the ESA that areas “essential for the conservation of the species” may include areas not currently habitable by the frog. “There is no habitability requirement,” observed the court, “in the text of the ESA or the implementing regulations.” The ESA calls on the FWS to designate “essential” areas, said the court, without further specifying “essential” to mean “habitable.”

The dissent criticized “sanctioning the oxymoron of uninhabitable critical habitat based on an incorrect view of the statute.” Noting that the ESA requires the FWS to “designate any habitat of [listed] species which is then considered to be critical habitat,” the dissent reasoned that the ESA thus does not authorize the FWS to designate non-habitat “areas” as critical habitat no matter how “essential” the FWS may consider such areas to be.

As designation of land as critical habitat may substantially constrain its use, development, and value, landowners naturally have much at stake and thus good reason to care whether the FWS may extend critical habitat designations over areas that listed species cannot inhabit. The importance of this question and the contentiousness of the rulings of the Fifth Circuit lend weight to efforts seeking Supreme Court review. The Ninth Circuit though recently confronted much the same issue in Bear Valley Mutual Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015)) and reached generally the same result as the majority in Markle Interests. Notwithstanding the division within the Fifth Circuit, two Circuits thus have reached the same conclusion, and there is not a split between Circuits, all of which may work against persuading the Supreme Court to take up the question at least for now.

In the meantime, in February 2016 while Markle Interests was pending in the Fifth Circuit, the FWS amended its regulations to enhance its ability to designate critical habitat by treating as “occupied” some areas not actually occupied by a species.

The court’s decision is accessible online at:

(David Ivester)