The 5th Circuit is generally held to be pretty conservative.Markle Interests L.L.C. v. United States Fish and Wildlife Service,
No. 14-31008, 2016 WL 3568093 (5th Cir. June 30, 2016)
In June 2016 the Fifth Circuit Court of Appeals ruled in favor of the United States Fish and Wildlife Service's ("FWS") designation of critical habitat in Mississippi and Louisiana for the dusky gopher frog, Rana sevosa.
The dusky gopher frog, whose habitat originally spanned Alabama, Louisiana, and Mississippi, relies on special "ephemeral ponds" for its breeding. These ponds are flooded only seasonally and then dry up during the rest of the year, keeping them free of predatory fish. In June 2012 FWS issued a final rule designating 6,477 acres across Mississippi and Louisiana as the final critical habitat area for the species. 1,544 acres of that critical habitat lie in St. Tammany Parish, Louisiana ("Unit 1") and were owned by several private timber and commercial development companies-Markle Interests, L.L.C., P&F Lumber Company 2000 L.L.C., PF Monroe Properties, L.L.C., and Weyerhaeuser Company ("Landowners").
Landowners sought declaratory judgment and injunctive relief against FWS, claiming that the designation of land in Louisiana violated the Endangered Species Act ("ESA") and Administrative Procedure Act ("APA"), exceeded the Service's constitutional authority under the Commerce Clause, and violated the National Environmental Policy Act ("NEPA"). Landowners further argued that private-party cooperation should be requisite for critical habitat designation encompassing private lands.
As the Court noted, these proposed limitations are extra-textual and may "effectively exclude all private land not occupied by the species from critical-habitat designations," "so long as [landowners] declare that they are not currently willing to modify habitat to make it habitable and that they will not be willing to make modifications in the foreseeable future."
When challenging an agency action, plaintiffs must prove the agency acted "arbitrarily and capriciously," a high standard reflective of the amount of deference afforded to agencies by the courts.
The Fifth Circuit found the FWS decision to designate Unit 1 as an area essential to the critical habitat affirmed the district court's holding was not arbitrary or capricious action based upon an unreasonable interpretation of the ESA.
link to opinion:
http://www.ca5.uscourts.gov/opinions%5C ... 08-CV0.pdf