827 F.3d 452 (5th Cir. 2016), 14-31008, Markle Interests, L.L.C. v. United States Fish & Wildlife Service

Docket Nº:14-31008, 14-31021
Citation:827 F.3d 452
Opinion Judge:STEPHEN A. HIGGINSON, Circuit Judge:
Party Name:MARKLE INTERESTS, L.L.C.; P& F LUMBER COMPANY 2000, L.L.C.; PF MONROE PROPERTIES, L.L.C., Plaintiffs - Appellants v. UNITED STATES FISH AND WILDLIFE SERVICE; DANIEL M. ASHE, Director of United States Fish & Wildlife Service, in his official capacity; UNITED STATES DEPARTMENT OF INTERIOR; SALLY JEWELL, in her official capacity as Secretary of...
Attorney:For MARKLE INTERESTS, L.L.C., Plaintiff - Appellant: Malcolm Reed Hopper, Esq., Pacific Legal Foundation, Sacramento, CA; Damien M. Schiff Pacific Legal Foundation Sacramento, CA. For P& F LUMBER COMPANY 2000, L.L.C., PF MONROE PROPERTIES, L.L.C., Plaintiffs - Appellants: Edward B. Poitevent, II,...
Judge Panel:Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge, dissenting. PRISCILLA R. OWEN, Circuit Judge, dissenting:
Case Date:June 30, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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827 F.3d 452 (5th Cir. 2016)

MARKLE INTERESTS, L.L.C.; P& F LUMBER COMPANY 2000, L.L.C.; PF MONROE PROPERTIES, L.L.C., Plaintiffs - Appellants

v.

UNITED STATES FISH AND WILDLIFE SERVICE; DANIEL M. ASHE, Director of United States Fish & Wildlife Service, in his official capacity; UNITED STATES DEPARTMENT OF INTERIOR; SALLY JEWELL, in her official capacity as Secretary of the Department of Interior, Defendants - Appellees

CENTER FOR BIOLOGICAL DIVERSITY; GULF RESTORATION NETWORK, Intervenor Defendants - Appellees;

WEYERHAEUSER COMPANY, Plaintiff - Appellant

v.

UNITED STATES FISH AND WILDLIFE SERVICE; DANIEL M. ASHE, Director of United States Fish & Wildlife Service, in his official capacity; SALLY JEWELL, in her official capacity as Secretary of the Department of Interior, Defendants - Appellees

CENTER FOR BIOLOGICAL DIVERSITY; GULF RESTORATION NETWORK, Intervenor Defendants - Appellees

Nos. 14-31008, 14-31021

United States Court of Appeals, Fifth Circuit

June 30, 2016

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Appeals from the United States District Court for the Eastern District of Louisiana.

For MARKLE INTERESTS, L.L.C., Plaintiff - Appellant: Malcolm Reed Hopper, Esq., Pacific Legal Foundation, Sacramento, CA; Damien M. Schiff Pacific Legal Foundation Sacramento, CA.

For P& F LUMBER COMPANY 2000, L.L.C., PF MONROE PROPERTIES, L.L.C., Plaintiffs - Appellants: Edward B. Poitevent, II, Metairie, LA; Brian Michael Ballay, Esq., Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., New Orleans, LA.

For UNITED STATES FISH AND WILDLIFE SERVICE, DANIEL M. ASHE, Director of United States Fish & Wildlife Service, in his official capacity, UNITED STATES DEPARTMENT OF INTERIOR, SALLY JEWELL, in her official capacity as Secretary of the Department of Interior, Defendants - Appellees: David C. Shilton, Esq., U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC; Luther Langon Hajek, U.S. Department of Justice, Environmental Defense Section, Denver, CO; Mary Elisabeth Hollingsworth U.S. Department of Justice Washington, DC.

For CENTER FOR BIOLOGICAL DIVERSITY, Intervenor, GULF RESTORATION NETWORK, Defendants - Appellees: Collette Lucille Adkins, Center for Biological Diersity, Circle Pines, MN; John Buse, Center for Biological Diversity, San Francisco, CA; Elizabeth Grace Livingston de Calderon Tulane University Tulane Environmental Law Clinic New Orleans, LA.

For AMERICAN FARM BUREAU FEDERATION NATIONAL ALLIANCE OF FOREST OWNERS NATIONAL ASSOCIATION OF HOME BUILDERS, Amicus Curiae: Paul Korman, Tyson Kade, Van Ness Feldman, L.L.P., Washington, DC.

Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge, dissenting.

OPINION

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STEPHEN A. HIGGINSON, Circuit Judge:

This appeal requires us to consider the United States Fish and Wildlife Service's inclusion of private land in a critical-habitat designation under the Endangered Species Act. Misconceptions exist about how critical-habitat designations impact private property. Critical-habitat designations do not transform private land into wildlife refuges. A designation does not authorize the government or the public to access private lands. Following designation, the Fish and Wildlife Service cannot force private landowners to introduce endangered species onto their land or to make modifications to their land. In short, a critical-habitat designation alone does not require private landowners to participate in the conservation of an endangered species. In a thorough opinion, District Judge Martin L. C. Feldman held that the Fish and Wildlife Service properly applied the Endangered Species Act to private land in St. Tammany Parish, Louisiana. As we discuss below, we AFFIRM Judge Feldman's judgment upholding this critical-habitat designation.

FACTS AND PROCEEDINGS

This case is about a frog--the Rana sevosa --commonly known as the dusky gopher frog.1 These frogs spend most of their lives underground in open-canopied pine forests.2 They migrate to isolated, ephemeral ponds to breed. Final Designation, 77 Fed.Reg. at 35,129. Ephemeral ponds are only seasonally flooded, leaving them to dry out cyclically and making it impossible for predatory fish to survive. See id. at 35,129, 35,131. After the frogs are finished breeding, they return to their underground habitats, followed by their offspring. Id. at 35,129. When the dusky gopher frog was listed as an endangered species, there were only about 100 adult frogs known to exist in the wild.3 Although, historically, the frog was found in parts of Louisiana, Mississippi, and Alabama, today, the frog exists only in Mississippi. Final Rule, 66 Fed.Reg. at 62,993-94; Final Designation, 77 Fed.Reg. at 35,132. The primary threat to the frog is habitat degradation. Final Rule, 66 Fed.Reg. at 62,994.

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In 2010, under the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531-1544, the United States Fish and Wildlife Service (" the Service" )[4] published a proposed rule to designate 1,957 acres in Mississippi as " critical habitat" for the dusky gopher frog.5 In response to concerns raised during the peer-review process about the sufficiency of this original proposal, the Service's final designation of critical habitat expanded the area to 6,477 acres in four counties in Mississippi and one parish in Louisiana. See Revised Proposal, 76 Fed.Reg. at 59,776; Final Designation, 77 Fed.Reg. at 35,118-19. The designated area in Louisiana (" Unit 1" ) consists of 1,544 acres in St. Tammany Parish. Final Designation, 77 Fed.Reg. at 35,118. Although the dusky gopher frog has not occupied Unit 1 for decades, the land contains historic breeding sites and five closely clustered ephemeral ponds. See Revised Proposal, 76 Fed.Reg. at 59,783; Final Designation, 77 Fed.Reg. at 35,123-24, 35,133, 35,135. The final critical-habitat designation was the culmination of two proposed rules, economic analysis, two rounds of notice and comment, a scientific peer-review process including responses from six experts, and a public hearing. See Final Designation, 77 Fed.Reg. at 35,119.

Together, Plaintiffs-Appellants Markle Interests, L.L.C., P& F Lumber Company 2000, L.L.C., PF Monroe Properties, L.L.C., and Weyerhaeuser Company (collectively, " the Landowners" ) own all of Unit 1. Weyerhaeuser Company holds a long-term timber lease on all of the land that does not expire until 2043. The Landowners intend to use the land for residential and commercial development and timber operations. Through consolidated suits, all of the Landowners filed actions for declaratory judgment and injunctive relief against the Service, its director, the Department of the Interior, and the Secretary of the Interior. The Landowners challenged only the Service's designation of Unit 1 as critical habitat, not the designation of land in Mississippi.

The district court allowed the Center for Biological Diversity and the Gulf Restoration Network (collectively, " the Intervenors" ) to intervene as defendants in support of the Service's final designation. All parties filed cross-motions for summary judgment. Although Judge Feldman granted summary judgment in favor of the Landowners on the issue of standing, he granted summary judgment in favor of the Service on the merits. See Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 40 F.Supp.3d 744, 748, 769 (E.D. La. 2014). The Landowners timely appealed.

STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015); see also Sabine River Auth. v. U.S. Dep't of Interior, 951 F.2d 669, 679 (5th Cir. 1992) (noting that the court of appeals reviews the administrative record de novo when the district court reviewed an agency's decision by way of a motion for summary judgment). Our review of the Service's administration

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of the ESA is governed by the Administrative Procedure Act (" APA" ). See Bennett v. Spear, 520 U.S. 154, 171-75, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (holding that a claim challenging the Service's alleged " maladministration of the ESA" is not reviewable under the citizen-suit provisions of the ESA, but is reviewable under the APA); see also 5 U.S.C. § § 702, 704. When reviewing agency action under the APA, this court must " set aside agency action, findings, and conclusions found to be--(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations." 5 U.S.C. § 706(2).

Review under the arbitrary-and-capricious standard is " extremely limited and highly deferential," Gulf...

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