The U.S. Circuit Courts of Appeals provide an extraordinary procedure to address panel decisions that are so patently wrong or so tremendously important that all or most of the judges in the circuit need to review the decision. This procedure is called en banc review. We have invoked en banc review in Markle v. U.S. Fish and Wildlife Service.
In Markle, PLF represents the landowners in challenging the designation of 1544 acres of private timber land in Louisiana as “critical habitat” for the dusky gopher frog. Although the land is unsuitable for use by the gopher frog, because it does not contain the physical and biological characteristics the Service says the frog needs to survive, and designation of the land will cost the landowners up to $33.9 million in lost profits, the Service claims it can regulate the land forever until it becomes accessible and usable for species conservation.
Amazingly, two judges, on a three-judge panel of the Fifth Circuit Court of Appeals, issued an opinion agreeing with the Service. This defies common sense. How can land that is wholly unsuitable as habitat be deemed “critical habitat” essential to the conservation of the species? At the very least, “critical habitat” must be habitat. Or reasonably susceptible of becoming such. But that’s not the case here. According to the dissent:
There is a gap in the reasoning of the majority opinion that cannot be
bridged. The area at issue is not presently “essential for the conservation of
the [endangered] species” because it plays no part in the conservation of that species. Its biological and physical characteristics will not support a dusky gopher frog population. There is no evidence of a reasonable probability (or any probability for that matter) that it will become “essential” to the conservation of the species because there is no evidence that the substantial alterations and maintenance necessary to transform the area into habitat suitable for the endangered species will, or are likely to, occur. Land that is not “essential” for conservation does not meet the statutory criteria for “critical habitat.”
No wonder the dissent called the decision “unprecedented and sweeping.”
The panel decision sets a dangerous precedent that would allow overzealous federal bureaucrats to set aside private property anywhere in the country in the hope that it may someday be used by a protected species. As the dissent observed:
The majority opinion interprets the Endangered Species Act 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. 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.
This is an opinion that calls out for en banc review. The opinion is patently wrong and the case is of tremendous importance nationwide. We therefore filed a petition for rehearing by the full court last Friday. For the sake of property rights everywhere, and the rule-of-law, let’s hope the Fifth Circuit reconsiders the case and reads some common sense back into the Endangered Species Act.