Markle Interests, L.L.C. v. United States Fish & Wildlife Service
848 F.3d 635
| 5th Cir. | 2017Background
- The U.S. Fish and Wildlife Service listed the dusky gopher frog as endangered and in 2012 designated several critical-habitat units, including Unit 1: a 1,544-acre Louisiana tract unoccupied and currently unsuitable for the frog.
- Unit 1 contains only one of three physical/biological features the Service deemed essential (ephemeral breeding ponds); uplands are largely closed-canopy pine plantations needing restoration to be suitable.
- Service acknowledged Unit 1 is presently unsuitable absent management (e.g., prescribed burning, habitat conversion) and estimated up to $34 million in lost development value from designation.
- Landowners challenged the designation, arguing Unit 1 is not "habitat of such species" and thus cannot be designated as unoccupied critical habitat, and that the Service failed adequately to consider economic impacts in declining to exclude Unit 1.
- A panel of the Fifth Circuit affirmed the Service: (1) holding that the ESA contains no habitability requirement for unoccupied critical habitat, (2) treating the presence of a single rare essential feature as sufficient to make an area "essential," and (3) ruling the Service’s decision not to exclude Unit 1 on economic grounds non-reviewable; Judge Jones dissented from denial of rehearing en banc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ESA requires critical habitat to be within the species' habitat (habitability requirement) | Unit 1 is uninhabitable so it cannot be "habitat of such species" and thus cannot be designated critical habitat | Statutory definition of "critical habitat" allows designation of unoccupied areas; statute/regulations contain no explicit habitability requirement | Panel majority: no habitability requirement; dissent: ESA text/history/regulations show critical habitat must be subset of species' habitat and Unit 1 fails that test |
| Standard for designating unoccupied critical habitat (one-feature vs. area-essential test) | Unoccupied designation is more demanding: an entire area must be "essential," not merely contain a single feature; panel’s one-feature test collapses occupied/unoccupied standards | Agency may designate an unoccupied area as essential if it contains features essential to conservation (e.g., rare ephemeral ponds) | Panel majority: presence/rarity of an essential feature justified designation; dissent: statutory text, history, and precedent require a more exacting area-essential showing |
| Whether the Service adequately considered economic impacts and whether decision not to exclude is judicially reviewable | Service failed to compare costs/benefits and offered implausible reasoning; decision not to exclude is reviewable under APA and Bennett v. Spear | Decision to exclude or not is discretionary and committed to agency discretion; not judicially reviewable | Panel majority: decision not to exclude is non-reviewable; dissent: Bennett and presumption of reviewability require arbitrary-and-capricious review of the agency’s exclusion decision |
| Proper role of judicial review and limits on agency deference in critical-habitat designations | Courts must enforce statutory limits (habitability and more-demanding standard for unoccupied areas) and review exclusion decisions | Agency scientific expertise and discretion merit deference on factual and balancing judgments | Dissent: deference does not override clear statutory text/history or Bennett; panel majority deferred to agency conclusions |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (agency’s consideration of economic impacts in critical-habitat decisions is mandatory and the ultimate decision is reviewable for abuse of discretion)
- Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) (landmark ESA case prompting statutory clarification)
- Heckler v. Chaney, 470 U.S. 821 (1985) (non-enforcement decisions may be presumptively unreviewable in certain contexts)
- Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) (strong presumption favoring judicial review of administrative action)
- Otay Mesa Prop., L.P. v. U.S. Dep’t of Interior, 646 F.3d 914 (D.C. Cir. 2011) (critical-habitat designation can impose significant costs via section 7 consultation)
- Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015) (upholding designation of unoccupied areas essential for downstream conservation; rejected a habitability requirement)
- Arizona Cattle Growers' Ass’n v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (recognizing that designation of unoccupied areas requires a more onerous showing)
- Home Builders Ass'n of Northern California v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010) (stating the standard for unoccupied critical habitat is more demanding than for occupied areas)