NEW ORLEANS — Six judges who would have re-heard an Endangered Species Act case en banc offered a dissenting opinion that poked fun of a panel and a majority of 5th Circuit Court of Appeals judges, comparing their actions to that of the dusky gopher frog.

"The panel majority regrettably followed the same strategy in judicial review — play dead, cover their eyes, peek, and play dead again," wrote Judge Edith Jones for the minority according to court documents. "Even more regrettably, the court refused to rehear this decision en banc."

Dissenting judges — that also included Grady Jolly, Jerry Smith, Edith Brown Clement, Priscilla Owen and Jennifer Elrod — found that the ramifications of the decision for national land-use regulation and for judicial review of agency action "cannot be underestimated."

Fifteen states appearing as amici urged rehearing by the full court.

The opinion noted that designation of private property as "critical habitat" can impose significant costs on landowners because federal agencies may not authorize, fund or carry out actions that are likely to "result in the destruction or adverse modification" of critical habitat.

The U.S. Fish and Wildlife Service listed the dusky gopher frog as endangered in 2001.

Because of litigation arising by landowners in federal court in New Orleans, the Service issued a final rule about the frog's critical habitat designation. The habitat included thousands of acres in Mississippi and 1,544 acres in Louisiana, which are not occupied by the dusky gopher frog. And since the frog did not occupy the Louisiana tract, the Service was required to show that the land was "essential" for its conservation.

Landowners argued that the Fish and Wildlife Service never compared the costs and benefits of designating land as "critical habitat" to support its conclusion that designation would cause no “disproportionate” impacts.

The district court granted summary judgment in favor of the Fish and Wildlife Service's critical habitat designation. A three-member appeals panel upheld the district court, 2-1.

The majority of judges who declined to let the whole court re-hear arguments were Chief Judge Carl Stewart, James Dennis, Edward Prado, Leslie Southwick, Catharina Haynes, James Graves, Stephen Higginson and Gregg Costa. According to the opinion published Feb. 13, the split panel at the 5th Circuit approved an "unauthorized extension" of ESA restrictions to a 1,500 acre-plus land tract in Louisiana "that is neither occupied by nor suitable for occupation by nor connected in any way to the 'shy frog.'"

The opinion notes that the endangered frogs currently live in and can inhabit 11 other uncontested tracts in Mississippi.

Jones wrote that "no conservation benefits accrue to them, but this designation costs the Louisiana landowners $34 million in future development opportunities."

"Properly construed, the ESA does not authorize this wholly unprecedented regulatory action," she wrote.

Jones further opined that all of the panel's conclusions — related to habitability requirements, whether the land was essential for the frog's conservation, and that the Fish and Wildlife Service's decision not to exclude the tract from critical habitat designation was discretionary and therefore not judicially reviewable — were wrong.

A troubling reasoning of the panel was its failure to "distinguish relevant precedent that recognized Congress’s prescribed limit to designations of unoccupied critical habitat."

"The panel majority’s non-textual interpretations of the ESA misconstrue Congress’s efforts to prescribe limits on the designation of endangered species’ habitats and encourage aggressive, tenuously based interference with property rights," Jones wrote. "The majority’s disregard for the presumption of judicial review, effectuated in the ESA’s text and by Bennett, deprives states and private landowners of needful protection by the federal courts."

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