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
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
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.
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
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
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
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."
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."