We have discussed here the “unprecedented and sweeping” decision of the Fifth Circuit Court of Appeals in Markle v. U.S. Fish and Wildlife Service in which a split three-judge panel held the Service could designate private property as “critical habitat” for protected species, even if the property does not and cannot be used to conserve the species. Like Alice in Wonderland, suddenly everything is upside down and non-habitat equals “critical habitat.”
This decision would allow the federal government to set aside any area in the country as a de facto wildlife preserve indefinitely in the unsupported hope that the area could someday become usable habitat for threatened or endangered species. This topsy-turvey view of the law is contrary to common sense and conflicts with statutory and constitutional law. The preservation of areas that are unsuitable as habitat provides no benefit to the species–in this case the dusky gopher frog–while undermining the landowner’s constitutionally protected property rights. To overturn this flawed decision, we filed a petition for rehearing by the entire appellate court. On Friday, 15 States filed an amicus brief in support of the petition. These States include Alabama, Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Montana, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, Texas, and Wyoming. The States underscored the importance of the case nationally and argued the decision should be overturned by the full court because the Service violated the Endangered Species Act and abused its discretion. This filing is a welcome boost to our case and greatly increases the likelihood that the Fifth Circuit will grant our petition and rehear the case.