Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision

Transcription

1 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision with Reflections on States Challenge to the Services Revised Critical Habitat Regulations American Bar Association Section of Environment, Energy, and Resources 2017 Law Student Writing Competition: Endangered Species By Cameron Zangenehzadeh Seattle University School of Law, Graduating May 2017

2 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-i Introduction... 1 I. Critical Habitat under the ESA... 2 II. The Dusky Gopher Frog and its Critical Habitat... 3 III. Markle on Critical Habitat... 4 IV. States Challenge to the Services Revised Critical Habitat Regulations... 6 V. Discussion... 7 Conclusion... 10

3 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-1 These are perilous times, said Frog. Introduction You re right, agreed Toad. Humans destroyed my home, and there aren t many places left for me to live, said Frog. Blah, cried Toad, the Endangered Species Act should protect your home. Debatable! replied Frog. Frog and Toad 1 can agree about one thing: global biodiversity is in peril. 2 Still, whether the Endangered Species Act (the Act or ESA ) 3 affords proper protections for the critical habitat of threatened and endangered species is debatable. Habitat loss and degradation is one of the leading drivers of extinction among threatened and endangered species. 4 One such species, the dusky gopher frog, is on the brink of extinction, and its critical habitat was the focus of Markle Interests, L.L.C. v. United States Fish & Wildlife Service. 5 The decision seen as a boon by ESA advocates and a burden by its conservative critics may not only help conserve breeding habitat for the frog, but also shed light on how courts will interpret revised regulations regarding the designation of critical habitat. 6 In Markle, the question was whether the government could designate an area, as critical habitat for an endangered species on private land the species does not inhabit. 7 A panel of the Fifth Circuit suggested that the Act allows the government to impose substantial limits on private property, and that panel held the U.S. Fish and Wildlife s ( FWS ) designation of critical habitat was not arbitrary and capricious nor based upon an unreasonable interpretation of the ESA. 8 A request for rehearing en banc was subsequently denied, though that decision was fraught with controversy and included a scathing 31-page dissent. 9 More recently, FWS and the National Marine Fisheries Service (collectively the Services ) revised the regulatory definition of critical habitat that was applied in Markle. 10 These revisions have caused considerable criticism, and 18 states ( States ) have challenged the Obama era rule. 11 The States lawsuit targets, inter alia, the change in agency process for designating unoccupied critical

4 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-2 habitat, a key component of the legal issue in Markle. Both of the dissents (i.e., panel and en banc) and the States argued that the ESA contains an inherent habitation or habitability requirement. Although a habitation or habitability requirement may seem logical on its face, such requirements would make recovery difficult for many threatened and endangered species whose current habitat has been reduced to a de minimis fraction of their historic home range. This paper discusses the decision in Markle to provide legal context for the recently filed challenge to the new rules promulgated by the Services. It evaluates why critical habitat designations on unoccupied areas can be vital for the survival of threatened and endangered species. It argues that a habitation or habitability requirement is not a statutory condition for designating critical habitat under the ESA. Finally, it concludes that while the new rules will likely be afforded Chevron deference, 12 the lawsuit may be designed to take advantage of a sympathetic Executive. I. Critical Habitat under the ESA Recognizing a dramatic decline in species, 13 Congress passed the ESA in Congress recognized that endangered and threatened, species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value. 15 It also recognized that species extinctions are a consequence of economic growth and development untempered by adequate concern and conservation. 16 Thus, the ESA provides a program for the conservation of endangered and threatened species and for the preservation of their ecosystems and habitats. 17 Specifically, as part of that program, the ESA directs that the Services must designate any habitat that is considered to be critical habitat. 18 The term critical habitat is defined as follows: [T]he specific areas within the geographical area occupied by the species, at the time it is listed on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and [S]pecific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species. 19

5 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-3 Thus, [t]he ESA expressly envisions two types of critical habitat: areas occupied by the endangered species at the time it is listed as endangered and areas not occupied by the species at the time of listing. 20 Another key statutory provision concerning critical habitat is as follows: [t]he Secretary shall designate critical habitat on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. 21 The Supreme Court has stated that [w]hen examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential. 22 On the one hand, Congress broadly defined the term conservation 23 as used in the Act: conservation essentially means the methods and procedures necessary to affect the recovery of listed species. On the other hand, Congress has not defined the term essential, but delegated that authority to the Secretaries of Interior and Commerce ( Secretaries ). 24 Therefore, Chevron deference applies where the Secretaries duly promulgate a rule designating an unoccupied area as critical habitat because it is essential for the conservation of the species. 25 Here, FWS exercised this delegated authority in the case of the endangered Dusky Gopher Frog. II. The Dusky Gopher Frog and its Critical Habitat On December 4, 2001, the FWS listed the Mississippi gopher frog (Rana capito sevosa) (the Frog or Frogs ) as an endangered species. 26 Historically, the Frog was believed to inhabit at least nine counties or parishes across Louisiana, Mississippi, and Alabama, ranging from east of the Mississippi River in Louisiana to the Mobile River delta in Alabama. 27 Nowadays, however, it survives in only one known location in Mississippi. 28 Although there are myriad threats to the Frog, human-caused threats are primarily in the form of habitat loss and degradation. 29 At the time of listing, there were only 100 adult Frogs known to live in the wild. 30

6 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-4 Adult Frogs spend most of their lives underground, 31 hence the moniker gopher. Still, the Frogs leave their subterranean habitat to breed in ephemeral ponds, ponds that transition from wet to dry on a seasonally recurring basis. 32 The Frog s habitat includes both upland[,] sandy habitats historically forested with longleaf pine and isolated[,] temporary wetland breeding sites embedded within the forested landscape. 33 But these wetlands or ephemeral ponds are rare. 34 Because adequate breeding habitat is vital to the survival of the species, 35 the FWS promulgated a rule that designated critical habitat for the Frogs specifically where ephemeral ponds were located within their historic home range. 36 This included unoccupied pond sites on privately owned land. 37 III. Markle on Critical Habitat Whether unoccupied areas were essential for the conservation of the Frog was the focus in Markle. Under the old regulations, FWS could not designate critical habitat on unoccupied land unless it first made a finding that a designation limited to [a species ] present range would be inadequate to ensure the conservation of the species. 38 FWS found that the present occupied range for the Frogs was inadequate. 39 The next step, under the old regulations, entailed limiting the critical-habitat designation to unoccupied areas that were essential for the conservation of the species. 40 However, because Congress did not define essential, FWS had the expertise and discretion to determine what was essential habitat for the Frogs. 41 FWS searched for isolated, ephemeral ponds within the historical range of the frog in Alabama and Louisiana, which they determined would be essential for conservation. 42 FWS found two suitable ponds in Louisiana (among others in Mississippi), though no Frogs occupied the areas. 43 FWS concluded that although the unoccupied areas did not host any known populations of Frogs, the unoccupied areas provided critical habitat essential for the conservation of the species because: (1) the ponds provide rare breeding habitat; (2) the ponds are vital to long-term survival; and (3) the proximity of the ponds to existing populations will protect the Frogs from unpredictable spatiotemporal fluctuations in

7 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-5 environmental conditions. 44 In the end, FWS promulgated a Final Rule designating critical habitat for the Frogs on both occupied and unoccupied areas. 45 The petitioners did not dispute the scientific or factual support that FWS provided; rather they argued that FWS exceeded its statutory authority under the Act. 46 The petitioners maintained FWS erroneously found that the habitat was essential because it was neither currently habitable nor concurrently supporting any populations of Frogs. 47 Accordingly, the petitioners argued that in order for the Services to designate the unoccupied areas as essential, the ESA requires that the area should be immediately habitable if, for instance, the Frogs were contemporaneously relocated to the unoccupied area. 48 The court disagreed with the petitioners and concluded that [t]here is no habitability requirement in the text of the ESA or the implementing regulations. 49 Therefore, after applying Chevron deference, both the district court and a panel of the Fifth Circuit held that the FWS designation was a permissible interpretation of the ESA. 50 The Court of Appeals concluded that the FWS finding was not arbitrary and capricious. 51 Further, it concluded that Chevron deference was appropriate where FWS promulgates, in a formal rule, a determination that an unoccupied area is essential for the conservation of an endangered species. 52 Nevertheless, the panel dissent rejected the majority s conclusion that Chevron deference was applicable in this circumstance. 53 Judge Owens echoed the petitioner s argument that the Service's designation of critical habitat was in excess of statutory authority within the meaning of the Administrative Procedure Act (APA). 54 After analyzing the plain language of the term essential, she concluded that FWS exceeded its statutory authority in its construction of the term because the land was not actually playing any part in conservation, nor basic and necessary for conservation because it cannot support the existence of the endangered species unless the physical characteristics of the land are significantly modified. 55 Judge Owens reasoned that the land contains only one of

8 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-6 the physical or biological features and habitat characteristics required to sustain the species' lifehistory processes[,] the existence of five ephemeral ponds. 56 She recognized that an opencanopied longleaf pine ecosystem is necessary for the habitat of this species of frog[,] [but] [a]pproximately ninety percent of the property is currently covered with closed-canopy loblolly pine plantations. 57 Therefore, the area was non-essential because it was currently inhabitable. 58 Moreover, it was undisputed that the land is subject to a timber lease until 2043, timber operations are ongoing, and neither the owner of the property nor the timber lessee is willing to permit the substantial alterations that the Service concluded would be necessary to restore the potentiality of the ponds and surrounding area as habitat for this species of frog. The dissent subsequent to the denial of rehearing en banc elaborated on many of Judge Owens arguments, but went further. Judge Jones argued, inter alia, the ESA contains a clear habitability requirement. 59 Moreover, she maintained, a species critical habitat must be a subset of the species actual [current] habitat. 60 IV. States Challenge to the Services Revised Critical Habitat Regulations In 2016, the Services promulgated new rules that, inter alia, eliminate the contentious twostep process discussed in Markle where privately owned unoccupied areas are in question. 61 The revised regulations amend the definition of occupied areas, and unoccupied areas, in pertinent part, as follows: Geographical area occupied by the species. An area that may generally be delineated around species' occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). 62 The Secretary will identify, at a scale determined by the Secretary to be appropriate, specific areas outside the geographical area occupied by the species that are essential for its conservation, considering the life history, status, and conservation needs of the species based on the best available scientific data. 63 The States argue that the revised regulations make a number of expansive changes to the habitat designation standard, at least four of which go far beyond what the ESA will bear. 64 Some

9 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-7 of the arguments presented in the States lawsuit challenging the new regulations parallel the arguments presented in the panel dissent in Markle, and the dissent that followed the denial of rehearing en banc. V. Discussion A court reviews the administration of the ESA under the APA. 65 When reviewing agency action under the APA, a court must set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or] in excess of statutory jurisdiction, authority, or limitations. 66 Still, [r]eview under the arbitrary and capricious standard is deferential. 67 In Chevron, the Court stated that if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. 68 That is, when a court reviews an agency s construction of a statute, its review is limited to whether the agency s construction of the statute in the context of its program was a reasonable one. 69 The issues in both Markle and the States complaint involves whether the Services exceeded their statutory authority in interpreting the ESA. Both appear to read a habitation or habitability requirement into the Act, and both seem to infer that a species critical habitat must be a subset of the species actual current habitat. The States complaint alleges that the revised regulations will allow the Services to designate unoccupied areas as essential to conservation, even if designating only occupied areas would result in the recovery of the species. 70 This allegation is illogical. If designating only occupied areas would result in the complete recovery of a species, it follows that unoccupied areas would not be essential. However, if FWS exceeded its authority by designating non-essential unoccupied areas, that determination would still be subject to arbitrary, capricious review regardless of the language contained in the revised regulation.

10 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-8 The Services use the best available science to determine what habitat is both critical and essential. 71 If, based on the best available science, designating an occupied area alone will meet conservation goals, the agencies would not designate non-essential unoccupied areas. The new rules simply eliminate the step-wise approach and, instead, give the agencies the flexibility needed to make effective critical habitat designations that best serve the endangered species. 72 The regulations make clear that the concurrent evaluation of occupied and unoccupied areas for a critical habitat designation will allow the Secretaries to develop more precise and deliberate designations that can serve as more effective conservation tools, focusing conservation resources where needed and minimizing unnecessary regulatory burdens. 73 Unoccupied areas can be essential if the species relies on some aspect of the habitat for part of its lifecycle 74 or if the unoccupied areas effect occupied critical habitat in some way. 75 For example, in Bear Valley the FWS designated unoccupied riverine habitat as essential 76 to the Santa Ana sucker because the areas provided high quality sediment for the downstream, occupied portions of the river. 77 FWS also found the sediment was essential to the fish because it provided a spawning ground, as well as a feeding ground. 78 Further, the sediment assisted in preserving water quality and temperature in the occupied reaches of the river. 79 The Ninth Circuit held that this finding was not arbitrary and capricious. 80 Moreover, the court concluded the ESA does not require that areas designated as critical habitat must be habitable. 81 As far the States allegation is concerned, it is doubtful that a reviewing court would find the concurrent evaluation of occupied and unoccupied areas unreasonable because the statute does not expressly mandate such an approach. The States complaint also alleges that the revised regulations will allow the Services to designate uninhabited areas as critical habitat, whether or not they are capable of supporting the species. 82 In forming this allegation, the complaint points to the following sentence: [t]he presence

11 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-9 of physical or biological features is not required by the statute for the inclusion of unoccupied areas in a designation of critical habitat. 83 However, taken out of context, this allegation is misleading. In responding to the comment, the resource agencies were simply pointing out a fact the ESA s language does not require the presence of all physical or biological features in designating unoccupied critical habitat. 84 Both the complaint and the dissent following the denial of rehearing en banc argue that the test for unoccupied critical habitat is more demanding than the test for occupied critical habitat. 85 According to the case law, this much is true. 86 However, the revised regulation states, in pertinent part, that: specific areas outside the geographical area occupied by the species that are essential for its conservation, considering the life history, status, and conservation needs of the species based on the best available scientific data. 87 Thus, the revised regulation tracks the statutory language: specific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species. 88 It seems unreasonable to argue that considering the life history, status, and conservation needs of the species based on the best available scientific data will somehow make it easier to designate unoccupied areas than it is to designate occupied areas. 89 The Services, in their discretion, may determine that unoccupied areas are critical habitat, whether or not they are capable of supporting the species, but only if the unoccupied areas are essential. For example, both the Canada lynx and the Florida panther s habitats are fragmented and disconnected. 90 If FWS found, based on the best available science, that unoccupied travel corridors were essential for the conservation of the species, it would be within FWS authority to designate those travel corridors as critical habitat. 91 Although a travel corridor is per se incapable of supporting a lynx or panther, a travel corridor could be essential for conservation if, say, it enabled fragmented populations to reproduce more successfully. 92 Again, it is doubtful this

12 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-10 interpretation would be unreasonable under Chevron because the Services are delegated the authority and have the expertise to determine what is essential based on the best available scientific data. Given the Fifth Circuit s stance in Markle, courts will likely find the revised regulations reasonable under Chevron. Yet, the lawsuit could be designed to take advantage of a sympathetic Executive; the administration could choose not to defend the rules or could request a judicial stay pending reconsideration of the rules. Furthermore, in Gutierrez-Brizuela v. Lynch, 93 newly appointed Supreme Court Justice, Neil Gorsuch, wrote a concurring opinion in which he addressed what he perceived as the elephant in the room: 94 namely, constitutional problems with Chevron. 95 Thus, Chevron deference could be reversed or limited in its application undermining the reasoning of the Fifth Circuit. Even so, the regulations appear to be on solid legal ground, as they reflect the purpose and intent of the Act that is, recoveries of listed species like the dusky gopher frog. Conclusion Only 100 Frogs remain. Accordingly, any habitat whether occupied or unoccupied that supports the Frogs biologic lifecycle is presumably essential. If the Frogs were confined only to areas they currently inhabit, how would they ever recover? Common sense tells us that for a species to survive, much less thrive, it must have adequate habitat and room to grow. Yet, construing the ESA to require habitation or habitability prior to designation could preclude recovery for many endangered species. Endangered species may need critical habitat designated in their historic home range, even if they do not currently inhabit the area. Endangered species may also need critical habitat designated, even if the areas do not presently contain all of the physical and biological features necessary to support the species, so long as the area has the potential to provide rare lifecycle or critical habitat support services. Where habitat loss or degradation is a factor of species decline, the States and dissents habitation or habitability requirement is like a life sentence: a prison in which to live and perish, but with no opportunity for parole.

13 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-11 1 The Frog and Toad banter pays homage to Arnold Lobel s classic children s stories. 2 See generally Chris D. Thomas et al., Extinction risk from climate change, 427 Nature (2004); Simon N. Stuart, Status and Trends of Amphibian Declines and Extinctions Worldwide, 306 SCIENCE 5702, (2004); Osvaldo E. Sala et al., Global Biodiversity Scenarios for the Year 2100, 287 SCIENCE 5459, (2000) Gerardo Ceballos et al., Accelerated modern human-induced species losses: Entering the sixth mass extinction, 1 Science Advances 5 (2015); Rajendra K. Pachauri et. al., Climate Change 2014: Synthesis Report, IPCC 67 (2015), available at ( A large fraction of terrestrial, freshwater and marine species faces increased extinction risk due to climate change during and beyond the 21st century, especially as climate change interacts with other stressors (high confidence). Extinction risk is increased relative to pre-industrial and present periods, under all RCP scenarios, as a result of both the magnitude and rate of climate change (high confidence). Extinctions will be driven by several climate-associated drivers (warming, sea-ice loss, variations in precipitation, reduced river flows, ocean acidification and lowered ocean oxygen levels) and the interactions among these drivers and their interaction with simultaneous habitat modification, over-exploitation of stocks, pollution, eutrophication and invasive species (high confidence). ); S. L. Pimm et al., The biodiversity of species and their rates of extinction, distribution, and protection, 344 Science 6187 (2014). ( The overarching driver of species extinction is human population growth and increasing per capita consumption. ); James Ming Chen, <<unknown Character>>: Protecting Biodiversity Against the Effects of Climate Change Through the Endangered Species Act, 47 Wash. U.J.L. & Pol'y 11 (2015) (arguing for the use of the Endangered Species Act to protect biodiversity from the effects of climate change); see also ELIZABETH KLOBERT, THE SIXTH EXTINCTION: AN UNNATURAL HISTORY (2015) (chronicling previous mass extinction events, and comparing them to the current Holocene extinction. The author also describes specific species that are now extinct because of human activities, as well as the ecologies of pre-historic and modern extinction events). 3 Endangered Species Act of 1973, 16 U.S.C (2017). 4 Jaclyn Lopez, Biodiversity on the Brink: The Role of "Assisted Migration" in Managing Endangered Species Threatened with Rising Seas, 39 Harv. Envtl. L. Rev. 157, 170 (2015) ( Habitat loss is the most significant threat to listed species. ) F.3d 452 (5th Cir. 2016). 6 Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 827 F.3d 452 (5th Cir. 2016); Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat, 81 Fed. Reg. 7,414 (Feb. 11, 2016); Interagency Cooperation Endangered Species Act of 1973, as Amended; Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg. 7,214 (Feb. 11, 2016) F.3d 452 (5th Cir. 2016). 8 Id. at See Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 848 F.3d 635 (5th Cir. 2017) (Jones, J., dissenting). 10 See Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat, 81 Fed. Reg. 7,414 (Feb. 11, 2016); Interagency Cooperation Endangered Species Act of 1973, as Amended; Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg. 7,214 (Feb. 11, 2016). 11 See Complaint, State of Alabama ex rel. Luther Strange et al. v. National Marine Fisheries Service et al., No. 1:16 Civ (S.D. Ala. Nov. 29, 2016) [hereinafter Complaint ]. 12 The Supreme Court established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the notion of Chevron deference, which is an important principle in administrative law. The case raised the issue of how courts should treat agency interpretations of statutes that required that agency to take some action. The Court held that courts should defer to agency statutory interpretations unless they are unreasonable. 13 See S. Rep. No , at 1 (1973) ( It has become increasingly apparent that some sort of protective measures must be taken to prevent the further extinction of many of the world's animal species. The number of animals on the Secretary of the Interior's list of domestic species that are currently threatened with extinction is now 109. On the foreign list, there are over 300 species. Further, the rate of extinction has increased to where on the average, one species disappears per year. ). 14 ENDANGERED SPECIES ACT OF 1973, Pub. L. No , 87 Stat. 884 (1973). 15 See 16 U.S.C. 1531(b) (2017). 16 Id. 1531(a)(1). 17 See generally Id (2017). 18 Id. 1533(a)(3)(A)(i). 19 Id. 1532(A)(i)-(ii) (emphasis added); see also 1532(B) ( Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph. ); 1532(C) ( Except in those circumstances determined by the

14 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-12 Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. ). 20 Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 827 F.3d 452, 464 (5th Cir. 2016) U.S.C. 1533(2) (emphasis added). 22 Id. (quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S. Ct. 2246, 2255, 76 L. Ed. 2d 437 (1983). 23 The terms conserve, conserving, and conservation mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. 16 U.S.C. 1532(3). 24 Id. ( Congress did not define essential but, rather, delegated to the Secretary the authority to make that determination. ) (quoting Markle Interests, 40 F.Supp.3d at 760.). 25 Markle Interests, 827 F.3d at 464 (emphasis added). 26 See Final Rule to List the Mississippi Gopher Frog Distinct Population Segment of Dusky Gopher Frog as Endangered, 66 Fed. Reg. 62,993 (Dec. 4, 2001) (to be codified at 50 C.F.R. pt. 17) [hereinafter Final Rule]. 27 Id. 28 Id. 29 See id. at 62,994 ( Habitat degradation is the primary factor in the loss of gopher frog populations in Alabama, Louisiana, and Mississippi. ). 30 Id. at 62,993, 62,995, 63, Id. 32 Id. 33 Id. at 62, See Designation of Critical Habitat for Dusky Gopher Frog (Previously Mississippi Gopher Frog), 77 Fed. Reg. 35,118 (Jun. 12, 2012) ( ephemeral ponds that can be used for establishing these populations are rare ) [hereinafter Final Designation]. 35 See Final Rule supra note 25 at 62,998 ( loss of essential upland and wetland habitat features is most likely responsible for the absence of these species. ). 36 See Final Designation supra note 33 at 35, Id. 38 Markle Interests, 827 F.3d at 465; 50 C.F.R (e) (2012) (emphasis added in Markle Interests). 39 See id. 40 Id. at 466; 16 U.S.C. 1532(5)(A)(ii) (emphasis added). 41 Id. at 467 (Accordingly, [t]o issue a formal rule designating critical habitat for the frog, the Service necessarily had to interpret and apply the applicable ESA provisions, including the word essential. ). 42 Id. 43 See generally id. 44 Id. at 467 ( Unit 1 is essential to the conservation of the dusky gopher frog because it provides: (1) Breeding habitat for the dusky gopher frog in a landscape where the rarity of that habitat is a primary threat to the species; (2) a framework of breeding ponds that supports metapopulation structure important to the long-term survival of the dusky gopher frog; and (3) geographic distance from extant dusky gopher frog populations, which likely provides protection from environmental stochasticity. ). 45 See Final Rule supra note Id. ( On appeal, the Landowners do not dispute the scientific or factual support for the Service's determination that Unit 1 is essential. Instead, they argue that the Service exceeded its statutory authority under the ESA and acted arbitrarily and capriciously when it designated Unit 1 as critical habitat because Unit 1 is not currently habitable, nor currently supporting the conservation of the species in any way, nor reasonably likely to support the conservation of the species in the foreseeable future. They contend that such land cannot rationally be called essential for the conservation of the species, because if it can be, then the Service would have nearly limitless authority to burden private lands with a critical habitat designation. ) (internal quotations omitted). 47 First, the petitioners argued that it is an unreasonable interpretation of the ESA to describe Unit 1 as essential for the conservation of the dusky gopher frog when Unit 1 is not currently habitable by the frog. Id. at 468. Second, the petitioners argued that it is an unreasonable interpretation of the ESA to describe Unit 1 as essential for the

15 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-13 conservation of the dusky gopher frog when Unit 1 is not currently supporting the conservation of the species in any way and the Service has no reasonable basis to believe that it will do so at any point in the foreseeable future. Id. at Id. 49 Id. at Id. at 467 ( As Judge Feldman reasoned below, [the Service's] finding that the unique ponds located on Unit 1 are essential for the frog's recovery is supported by the ESA and by the record; it therefore must be upheld in law as a permissible interpretation of the ESA. ) (internal quotations omitted); id. at 473 ( In sum, the designation of Unit 1 as critical habitat was not arbitrary and capricious nor based upon an unreasonable interpretation of the ESA. The Service reasonably determined (1) that designating occupied habitat alone would be inadequate to ensure the conservation of the dusky gopher frog and (2) that Unit 1 is essential for the conservation of the frog. We thus agree with Judge Feldman: the law authorizes such action and... the government has acted within the law. ) 51 Id. ( During the peer-review and comment process on this original proposal, the expert reviewers expressed that the designated habitat in the proposal was inadequate to ensure the conservation of the frog. The experts therefore urged the Service to expand the designation to Louisiana or Alabama, the two other states in the frog's historical range. The Service adopted this consensus expert conclusion, finding that designating the occupied land in Mississippi was not sufficient to conserve the species. The Service explained that [r]ecovery of the dusky gopher frog will not be possible without the establishment of additional breeding populations of the species, and it emphasized that it was necessary to designate critical habitat outside of Mississippi to protect against potential local events, such as drought and other environmental disasters. The Service therefore determined that [a]dditional areas that were not known to be occupied at the time of listing are essential for the conservation of the species. In sum, all of the experts agreed that designating occupied land alone would not be sufficient to conserve the dusky gopher frog. ) (internal citations and quotations omitted). 52 Id. at See id. at 480 (Owens, J., dissenting) ( 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. ) (internal quotations omitted); see also Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 848 F.3d 635, (5th Cir. 2017) (Jones, J., dissenting) ( The panel opinion, over Judge Owen's cogent dissent, approved an unauthorized extension of ESA restrictions to a 1,500 acre-plus Louisiana land tract that is neither occupied by nor suitable for occupation by nor connected in any way to the shy frog. The frogs currently live upon or can inhabit eleven other uncontested critical habitat tracts in Mississippi. 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. ) (Jones, J., dissenting) (internal citations omitted). 54 Id. at 483. Judge Owens essentially concluded that, insofar as unoccupied lands are concerned, the ESA cannot support an interpretation where the unoccupied area in question: (1) is not presently essential for conservation; (2) its present biological and physical characteristics will not support the species; and (3) there is not a reasonable probability that it will become essential to the conservation. 55 Id. 56 Id. at Id. 58 Id. at See 848 F.3d at See Id. at Listing Endangered and Threatened Species and Designating Critical Habitat; Implementing Changes to the Regulations for Designating Critical Habitat, 81 Fed. Reg. 7,414, 7, (Feb. 11, 2016) [hereinafter Final Rule Implementing Changes ] ( [W]e have determined that the provision is an unnecessary and redundant limitation on the use of an important conservation tool. Further, we have learned from years of implementing the critical habitat provisions of the Act that a rigid step-wise approach, i.e., first designating all occupied areas that meet the definition of critical habitat (assuming that no unoccupied habitat is designated) and then, only if that is not enough, designating essential unoccupied habitat may not be the best conservation strategy for the species and in some circumstances may result in a designation that is geographically larger, but less effective as a conservation tool. Our proposed change will

16 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision-14 allow us to consider the inclusion of occupied and unoccupied areas in a critical habitat designation following any general conservation strategy that has been developed for the species. In some cases (e.g., wide ranging species like the spotted owl or lynx), we have found and expect that we will continue to find that the inclusion of all occupied habitat in a designation does not support the best conservation strategy for a species. We expect that the concurrent evaluation of occupied and unoccupied areas for a critical habitat designation will allow us to develop more precise and deliberate designations that can serve as more effective conservation tools, focusing conservation resources where needed and minimizing unnecessary regulatory burdens. ); see also id. at 7,429 (The final rule revises 50 CFR , , and (except for paragraph (c)) to clarify the procedures and criteria used for designating critical habitat, addressing in particular several key issues that have been subject to frequent litigation. ) C.F.R (2016) C.F.R (b)(2) (2016). 64 See Complaint, at 13; The States challenge: (1) the elimination of the two-step process that was established in the 1984 regulations, id. at 14, (2) the complete revision of (b), id. at 15, (3) the notion that FWS or NMFS can designate unoccupied areas as critical habitat even if those areas are incapable of acting as habitat for the species, id., and (4) the ability of the Services to declare critical habitat at a scale determined by the Secretary to be appropriate. Id. at See Markle Interests, 827 F.3d at 460 (citing Bennett v. Spear, 520 U.S. 154, , 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) U.S.C. 706(2). 67 Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658, 127 S. Ct. 2518, 2529, 168 L. Ed. 2d 467 (2007); see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2867, 77 L. Ed. 2d 443 (1983) ( [A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. ). 68 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984) ( The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. ) (internal quotations and citations omitted). 69 See id. 70 Complaint, at ( In reversing that long standing practice, the Services contend that there is no specific language in the Act that requires the Services to first prove that the inclusion of all occupied areas in a designation are insufficient to conserve the species before considering unoccupied areas. ) (citing 81 Fed. Reg. 7,414, 7, (Feb. 11, 2016)). 71 Final Rule at 7,420 ( [W]e determine whether unoccupied areas are essential for the conservation of the species by considering the best available scientific data regarding the life-history, status, and conservation needs of the species. ); 16 U.S.C. 1533(2); 50 C.F.R Id. at 7,415 ( We have learned from years of implementing the critical habitat provisions of the Act that a rigid step-wise approach, i.e., first designating all occupied areas that meet the definition of critical habitat (assuming that no unoccupied habitat is designated) and then, only if that is not enough, designating essential unoccupied habitat may not be the best conservation strategy for the species and in some circumstances may result in a designation that is geographically larger, but less effective as a conservation tool. ). 73 Id. at 7, See Markle Interests, 827 F.3d at 467 ( Unit 1 is essential to the conservation of the dusky gopher frog because it provides: (1) Breeding habitat for the dusky gopher frog in a landscape where the rarity of that habitat is a primary threat to the species; (2) a framework of breeding ponds that supports metapopulation structure important to the long-term survival of the dusky gopher frog; and (3) geographic distance from extant dusky gopher frog populations, which likely provides protection from environmental stochasticity. ).

17 Blah, said Toad: A Divided Fifth Circuit Refuses to Rehear Frog Critical Habitat Decision See, e.g., Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, (9th Cir. 2015), cert. denied, 136 S. Ct. 799, 193 L. Ed. 2d 765 (2016). 76 Id. at 994 ( [T]he area is designated as essential because it provides sources of water and coarse sediment... necessary to maintain preferred substrate conditions for the sucker. ) (emphasis in original). 77 Id. 78 Id. 79 Id. 80 Id. 81 Id. ( Appellants further contend that the FWS's justification for designating this unoccupied land was arbitrary and capricious because uninhabitable source areas do not meet the statutory requirement for critical habitat. There is no support for this contention in the text of the ESA or the implementing regulation, which requires the Service to show that the area is essential, without further defining that term as habitable. ); but see Markle Interests, 848 F.3d at (Jones, J., dissenting) (the ESA contains a clear habitability requirement). 82 Id. at 13, Complaint, at 15; 81 Fed. Reg. at 7, Under section 3(5)(A)(ii) of the statute, unoccupied areas are subject only to the requirement that such areas are essential for the conservation of the species. 81 Fed. Reg. at 7,420 (emphasis added). 85 Markle Interests, 848 F.3d ; Complaint, at See, e.g., Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010) ( The statute thus differentiates between occupied and unoccupied areas, imposing a more onerous procedure on the designation of unoccupied areas by requiring the Secretary to make a showing that unoccupied areas are essential for the conservation of the species. ); Ctr. for Biological Diversity, Defs. of Wildlife v. Kelly, 93 F. Supp. 3d 1193, 1202 (D. Idaho 2015) ( The standard for designating unoccupied habitat is more demanding than that of occupied critical habitat. ); All. for Wild Rockies v. Lyder, 728 F. Supp. 2d 1126, 1138 (D. Mont. 2010) ( Compared to occupied areas, the ESA imposes a more onerous procedure on the designation of unoccupied areas by requiring the Secretary to make a showing that unoccupied areas are essential for the conservation of the species. ) (citing Arizona Cattle Growers' Ass'n, 606 F.3d at 1163); Cape Hatteras Access Pres. All. v. U.S. Dep't of Interior, 344 F. Supp. 2d 108, 119 (D.D.C. 2004) ( [B]oth occupied and unoccupied areas may become critical habitat, but, with unoccupied areas, it is not enough that the area's features be essential to conservation, the area itself must be essential. ); Am. Forest Res. Council v. Ashe, 946 F. Supp. 2d 1, 44 (D.D.C. 2013), judgment entered, 301 F.R.D. 14 (D.D.C. 2014), and aff'd, 601 Fed. Appx. 1 (D.C. Cir. 2015) (FWS recognizing a more demanding standard for unoccupied habitat ) C.F.R (b)(2) (2016) U.S.C. 1532(A)(i)-(ii) (emphasis added); see also 1532(B) ( Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph. ); 1532(C) ( Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. ). 89 See Complaint, at See, e.g., All. for Wild Rockies, 728 F. Supp. 2d at 1139 ( Suitable lynx habitat in the United States is naturally fragmented and disjunct. ); Conservancy of Sw. Florida v. U.S. Fish & Wildlife Serv., 677 F.3d 1073, 1076 (11th Cir. 2012) ( [T]he decline of the Florida panther population [is] due to the gradual loss, degradation, and fragmentation of its habitat. ). 91 See, e.g., All. for Wild Rockies, 728 F. Supp. 2d at 1139 ( This habitat structure creates subpopulations of lynx that rely on connectivity and travel corridors to other suitable habitat (and subpopulations) to allow the species to expand and colonize new areas, provide population support to shrinking populations, and to effect dispersal and find a mate. ). 92 Id. (The travel corridor could provide[] habitat connectivity for travel within home ranges, and exploratory movements and dispersal within critical habitat units. ) F.3d 1142 (10th Cir. 2016). 94 Id. at 1149 (Gorsuch, J., concurring). 95 Id.