Markle Interests, L.L.C. v. U.S. Fish and Wildlife , 827 F.3d 452 ( 2016 )

Case: 14-31008 Document: 00513573768 Page: 1 Date Filed: 06/30/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 30, 2016
No. 14-31008
Lyle W. Cayce
Clerk
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
_______________________________________________________________
Cons/w 14-31021
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
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Appeals from the United States District Court
for the Eastern District of Louisiana
Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
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-
1 See Designation of Critical Habitat for Mississippi Gopher Frog, 76 Fed. Reg. 59,774,
59,775 (proposed Sept. 27, 2011) (to be codified at 50 C.F.R. pt. 17) [hereinafter Revised
Proposal]. The frog was previously known as the Mississippi gopher frog, but further
taxonomic research indicated that the dusky gopher frog is different from other gopher frogs,
warranting acceptance as its own species: the Rana sevosa or the dusky gopher frog. Id. We
will refer to the frog as the dusky gopher frog.
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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.
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
2 Designation of Critical Habitat for Dusky Gopher Frog (Previously Mississippi
Gopher Frog), 77 Fed. Reg. 35,118, 35,129 (June 12, 2012) (to be codified at 50 C.F.R. pt. 17)
[hereinafter Final Designation]. It appears that the frogs are not accustomed to human
interaction. If you pick up a gopher frog and hold it, the frog will play dead and even cover
its eyes; if you hold the frog long enough, it will peak at you and then pretend to be dead
again.
3 See Final Rule to List the Mississippi Gopher Frog Distinct Population Segment of
Dusky Gopher Frog as Endangered, 66 Fed. Reg. 62,993, 62,993, 62,995, 63,000 (Dec. 4, 2001)
(to be codified at 50 C.F.R. pt. 17) [hereinafter Final Rule].
4 The Secretary of the Department of the Interior and the Secretary of the Department
of Commerce are jointly charged with administering the ESA. See 16 U.S.C. § 1532(15). The
Secretary of the Interior administers the ESA through the Fish and Wildlife Service. We refer
to both the Secretary and the agency as the “Service.”
5 See Designation of Critical Habitat for Mississippi Gopher Frog, 75 Fed. Reg. 31,387,
31,387 (proposed June 3, 2010) (to be codified at 50 C.F.R. pt. 17) [hereinafter Original
Proposal].
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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-
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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 of the ESA
is governed by the Administrative Procedure Act (“APA”). See Bennett v. Spear,
520 U.S. 154, 171–75 (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 Restoration Network v. McCarthy, 783
F.3d 227, 243 (5th Cir. 2015) (internal quotation marks omitted), and “there is
a presumption that the agency’s decision is valid,” La. Pub. Serv. Comm’n v.
F.E.R.C., 761 F.3d 540, 558 (5th Cir. 2014) (internal quotation marks omitted).
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The plaintiff has the burden of overcoming the presumption of validity. La.
Pub. Serv. Comm’n, 761 F.3d at 558.
Under the arbitrary-and-capricious standard,
we will not vacate an agency’s decision unless it has relied on
factors which Congress had 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.
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007)
(internal quotation marks omitted). We must be mindful not to substitute our
judgment for the agency’s. FCC v. Fox Television Stations, Inc., 556 U.S. 502,
513 (2009). That said, we must still ensure that “[the] agency examine[d] the
relevant data and articulate[d] a satisfactory explanation for its action.” Id.
(internal quotation marks omitted). “We will uphold an agency’s action if its
reasons and policy choices satisfy minimum standards of rationality.” 10 Ring
Precision, Inc. v. Jones, 722 F.3d 711, 723 (5th Cir. 2013) (internal quotation
marks omitted).
DISCUSSION
The Landowners raise three challenges to the Service’s designation of
Unit 1 as critical habitat for the dusky gopher frog. They argue that the
designation (1) violates the ESA and the APA, (2) exceeds the Service’s
constitutional authority under the Commerce Clause, U.S. Const. art. I, § 8, cl.
3, and (3) violates the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq. As we discuss below, each of their arguments fails.
I. Endangered Species Act
Congress enacted the ESA “to provide a means whereby the ecosystems
upon which endangered species . . . depend may be conserved” and “to provide
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a program for the conservation of such endangered species.” 16 U.S.C.
§ 1531(b). The ESA broadly defines “conservation.” It includes “the use of all
methods and procedures which are necessary to bring any endangered
species . . . to the point at which the measures provided [by the ESA] are no
longer necessary.” Id. § 1532(3). In other words, “the objective of the ESA is to
enable [endangered] species not merely to survive, but to recover from their
endangered or threatened status.” Sierra Club v. U.S. Fish & Wildlife Serv.,
245 F.3d 434, 438 (5th Cir. 2001); see also Tenn. Valley Auth. v. Hill, 437 U.S.
153, 184 (1978) (“The plain intent of Congress in enacting this statute was to
halt and reverse the trend toward species extinction, whatever the cost. This
is reflected not only in the stated policies of the Act, but in literally every
section of the statute.”).
To achieve this objective, the ESA requires the Service to first identify
and list endangered and threatened species. See 16 U.S.C. § 1533(a)(1). Listing
a species as endangered or threatened then triggers the Service’s statutory
duty to designate critical habitat “to the maximum extent prudent and
determinable.” See id. § 1533(a)(3)(A)(i). 6 “Critical habitat designation
primarily benefits listed species through the ESA’s [Section 7] consultation
mechanism.” Sierra Club, 245 F.3d at 439; see 16 U.S.C. § 1536 (describing the
6 The Service typically is required to designate critical habitat at the same time that
it lists a species as endangered or threatened. 16 U.S.C. § 1533(a)(3)(A)(i). But if critical
habitat is not “determinable” at the time of listing, the Service can extend the deadline for
making a critical-habitat designation. See id. § 1533(b)(6)(A)(ii), (b)(6)(C)(ii). Although the
Service listed the dusky gopher frog as endangered in 2001, it declined to designate critical
habitat at that time because of budget limitations. See Final Rule, 66 Fed. Reg. at 63,000. Six
years later, in 2007, the Service still had not designated critical habitat for the frog. The
Center for Biological Diversity therefore sued the Service for failing to timely designate
critical habitat. That lawsuit resulted in a court-approved settlement agreement that set
deadlines for the Service to designate critical habitat for the dusky gopher frog. The Service’s
resulting designations under this agreement, including the designation of Unit 1, prompted
the lawsuit that we are considering on appeal.
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Section 7 consultation process). Under this section, once habitat is designated
as critical, federal agencies are prohibited from authorizing, funding, or
carrying out any action that is likely to result in “the destruction or adverse
modification” of that critical habitat without receiving a special exemption. 7 16
U.S.C. § 1536(a)(2). To satisfy the requirements of Section 7, federal agencies
must consult with the Service before taking any action that might negatively
affect critical habitat. 8 Only federal agencies—not private parties—must
engage in this Section 7 consultation process. See id.; 50 C.F.R. § 402.14(a).
Thus, as Judge Feldman explained, “absent a federal nexus, [the Service]
cannot compel a private landowner to make changes to restore his designated
property into optimal habitat.” Markle Interests, 40 F. Supp. 3d at 750.
A. Standing
Before addressing the merits of the Service’s critical-habitat designation,
we first address whether the Landowners have standing to challenge the
designation. “The question of standing involves both constitutional limitations
on federal-court jurisdiction and prudential limitations on its exercise.”
Bennett, 520 U.S. at 162 (internal quotation marks omitted). In particular, to
establish standing under the APA, in addition to Article III standing, a plaintiff
must show that “the interest sought to be protected by the [plaintiff] is
arguably within the zone of interests to be protected or regulated by the statute
or constitutional guarantee in question.” Id. at 175 (quoting Ass’n of Data
7 Section 7 consultation is also required whenever any federal action will “jeopardize
the continued existence” of an endangered species, regardless of whether the Service has
designated critical habitat. 16 U.S.C. § 1536(a)(2); see Sierra Club, 245 F.3d at 439.
8 If the Service determines that a contemplated action—the issuance of a permit, for
example—is likely to adversely modify critical habitat, the Service must suggest “reasonable
and prudent alternatives” that the consulting agency could take to avoid adverse
modification. See 50 C.F.R. § 402.14(h)(3). These alternatives must be “economically and
technologically feasible.” Id. § 402.02.
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Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). Although the
district court correctly held that the APA provided the proper vehicle for the
Landowners to challenge the Service’s administration of the ESA, the district
court did not address the APA’s zone-of-interests test; instead, it held only that
the Landowners have standing under Article III. On appeal, the Service did
not brief the zone-of-interests issue or challenge the district court’s conclusion
that the Landowners have Article III standing.
Even though the Service did not appeal the district court’s standing
conclusion, we must independently assess the Landowners’ Article III
standing. 9 See Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1251 (5th Cir.
1995) (“The federal courts are under an independent obligation to examine
their own jurisdiction, and standing is perhaps the most important of the
jurisdictional doctrines.” (alterations and internal quotation marks omitted)).
“Article III of the Constitution limits federal courts’ jurisdiction to certain
‘Cases’ and ‘Controversies.’” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
1147 (2013). “To satisfy the ‘case’ or ‘controversy’ requirement of Article III,
which is the ‘irreducible constitutional minimum’ of standing, a plaintiff
must . . . demonstrate that he has suffered ‘injury in fact,’ that the injury is
‘fairly traceable’ to the actions of the defendant, and that the injury will likely
be redressed by a favorable decision.” Bennett, 520 U.S. at 162 (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). The injury must be
concrete and particularized, as well as actual or imminent. Lujan, 504 U.S. at
560; see also Crane v. Johnson, 783 F.3d 244, 251 (5th Cir. 2015) (“Although
imminence is concededly a somewhat elastic concept, it cannot be stretched
9This Article III standing analysis applies to all of the Landowners’ claims, not just
the Landowners’ claim under the ESA.
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beyond its purpose, which is to ensure that the alleged injury is not too
speculative for Article III purposes—that the injury is certainly impending.”).
“The party invoking federal jurisdiction bears the burden of establishing these
elements.” Lujan, 504 U.S. at 561.
Here, the Landowners assert two alleged injuries: lost future
development and lost property value. The first—loss of future development—
is too speculative to support Article III standing. Although “[a]n increased
regulatory burden typically satisfies the injury in fact requirement,” Contender
Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 266 (5th Cir. 2015), any
regulatory burden on Unit 1 is purely speculative at this point. As the Service
emphasized in the designation, if future development occurring on Unit 1
avoids impacting jurisdictional wetlands, no federal permit would be required
and the ESA’s Section 7 consultation process would not be triggered. See Final
Designation, 77 Fed. Reg. at 35,126 (noting that the range of possible economic
impact to Unit 1 of $0 to $33.9 million “reflects uncertainty regarding future
land use”); id. at 35,140 (observing that “considerable uncertainty exists
regarding the likelihood of a Federal nexus for development activities [in Unit
1]”); see also 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). Judge Feldman
similarly stressed this point, explaining that, “if a private party’s action has no
federal nexus (if it is not authorized, funded, or carried out by a federal agency),
no affirmative obligations are triggered by the critical habitat designation.”
Markle Interests, 40 F. Supp. 3d at 750.
Because the Landowners have not provided evidence that specific
development projects are likely to be impacted by Section 7 consultation, 10 lost
10 To the contrary, the record reflects that, at the time Unit 1 was designated,
development plans had already been delayed because of the recession and the mortgage
crisis. This uncertainty about development not only underscores the absence of a concrete
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future development is too speculative to support standing. See Lujan, 504 U.S.
at 564 (“Such ‘some day’ intentions—without any description of concrete plans,
or indeed even any specification of when the some day will be—do not support
a finding of the ‘actual or imminent’ injury that our cases require.”); see also
Clapper, 133 S. Ct. at 1147–48 (holding that plaintiffs did not have standing
to challenge the Foreign Intelligence Surveillance Act in part because they
provided no evidence supporting their “highly speculative fear” that the
government would imminently target communications to which plaintiffs were
parties); Crane, 783 F.3d at 252 (holding that Mississippi did not have standing
to challenge the federal government’s deferred-action policy because its injury
was “purely speculative” and because it failed to “produce evidence of costs it
would incur” because of the policy); cf. Cape Hatteras Access Pres. Alliance v.
U.S. Dep’t of Interior, 344 F. Supp. 2d 108, 117–18 (D.D.C. 2004) (holding that
the burdens of Section 7 consultation supported standing when the plaintiffs
identified specific, ongoing development projects that would be delayed
because of the consultation requirement).
The Landowners’ assertion of lost property value, by contrast, is a
concrete and particularized injury that supports standing. See Sabine River
Auth., 951 F.2d at 674 (recognizing that injury in fact includes economic
injury). The Landowners assert that their land has already lost value as a
result of the critical-habitat designation. Indeed, as the Service recognized in
its Final Economic Analysis, given the “stigma” attached to critical-habitat
designations, “[p]ublic attitudes about the limits or restrictions that critical
injury, but also highlights that any injury, however speculative, is not fairly traceable to the
critical-habitat designation. Moreover, the long-term timber lease running on the land until
2043 also suggests that development may not occur on Unit 1 in the foreseeable future.
Although the Landowners suggest that they could renegotiate the timber lease as conditions
change, they have not demonstrated that they have concrete plans to do so.
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habitat may impose can cause real economic effects to property owners,
regardless of whether such limits are actually imposed.” As a result, “a
property that is designated as critical habitat may have a lower market value
than an identical property that is not within the boundaries of critical habitat
due to perceived limitations or restrictions.” The Service further assumed that
“any reduction in land value due to the designation of critical habitat will
happen immediately at the time of the designation.”
Causation and redressability flow naturally from this injury. If a
plaintiff—or, here, the plaintiffs’ land—is the object of government action,
“there is ordinarily little question that the action . . . has caused him injury,
and that a judgment preventing . . . the action will redress it.” Lujan, 504 U.S.
at 561–62. We conclude that the Landowners’ decreased property value is fairly
traceable to the Service’s critical-habitat designation and that this injury
would likely be redressed by a favorable decision. Thus, the Landowners have
established Article III standing based on lost property value.
The question nevertheless remains whether the Landowners satisfy the
APA’s zone-of-interests requirement. See Bennett, 520 U.S. at 175–77. The
Service, however, has not argued—either in the district court or this court—
that the Landowners’ interests fall outside the zone of interests that the ESA
is designed to protect. “Unlike constitutional standing, prudential standing
arguments may be waived.” Bd. of Miss. Levee Comm’rs v. EPA, 674 F.3d 409,
417–18 (5th Cir. 2012). 11 Although we have previously considered the zone-of-
interests issue sua sponte, see Nat’l Solid Waste Mgmt. Ass’n v. Pine Belt Reg’l
11 We are mindful that the Supreme Court has recently clarified that “‘prudential
standing’ is a misnomer as applied to the zone-of-interests analysis,” emphasizing instead
that the analysis requires “using traditional tools of statutory interpretation.” Lexmark Int’l,
Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 (2014) (citation and internal
quotation marks omitted).
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Solid Waste Mgmt. Auth., 389 F.3d 491, 498 (5th Cir. 2004), we decline to do
so here. Because the Service failed to raise this argument, we hold that the
Service has forfeited a challenge to the Landowners’ standing under the zone-
of-interests test. We thus conclude that the Landowners have standing to
challenge the Service’s critical-habitat designation.
B. Critical-Habitat Designation
The 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. See 16 U.S.C. § 1532(5)(A)(i)–(ii).
To designate an occupied area as critical habitat, the Service must
demonstrate that the area contains “those physical or biological features . . .
essential to the conservation of the species.” 12 Id. § 1532(5)(A)(i). To designate
unoccupied areas, the Service must determine that the designated areas are
“essential for the conservation of the species.” Id. § 1532(5)(A)(ii). As Judge
Feldman noted below, “Congress did not define ‘essential’ but, rather,
delegated to the Secretary the authority to make that determination.” Markle
Interests, 40 F. Supp. 3d at 760. Thus, when the Service promulgates, in a
formal rule, a determination that an unoccupied area is “essential for the
conservation” of an endangered species, Chevron deference is appropriate. See
id. (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
843 n.9 (1984)); Knapp v. U.S. Dep’t of Agric., 796 F.3d 445, 454 (5th Cir. 2015)
12Under the regulations in place at the time of the critical-habitat designation at issue
here, the Service referred to these “physical or biological features” as “primary constituent
elements” or “PCEs.” 50 C.F.R. § 424.12(b) (2012). The primary constituent elements that
make up the dusky gopher frog’s habitat are (1) ephemeral ponds used for breeding,
(2) upland, open-canopy forests “adjacent to and accessible to and from breeding ponds,” and
(3) upland connectivity habitat to allow the frog to move between breeding and nonbreeding
habitats. Final Designation, 77 Fed. Reg. at 35,131.
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(“[A]dministrative implementation of a particular statutory provision qualifies
for Chevron deference when it appears [(1)] that Congress delegated authority
to the agency generally to make rules carrying the force of law, and [(2)] that
the agency interpretation claiming deference was promulgated in the exercise
of that authority.” (alterations in original)).
The Service must designate critical habitat “on the basis of the best
scientific data available and after taking into consideration the economic
impact, the impact on national security, and any other relevant impact, of
specifying any particular area as critical habitat.” Id. § 1533(b)(2). “When
examining this kind of scientific determination, as opposed to simple findings
of fact, a reviewing court must generally be at its most deferential.” Balt. Gas
& Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983); Medina
Cnty. Envtl. Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir.
2010) (“Where an agency’s particular technical expertise is involved, we are at
our most deferential in reviewing the agency’s findings.”).
In addition, under the regulations in place at the time of the critical-
habitat designation at issue here, before the Service could designate
unoccupied land as critical habitat, it first had to make a finding that “a
designation limited to [a species’] present range would be inadequate to ensure
the conservation of the species.” 50 C.F.R. § 424.12(e) (2012) (emphasis added).
Unit 1 is unoccupied. Thus, under its own regulations, the Service first had to
make an inadequacy determination. The Service’s first proposed designation
included only land in Mississippi and did not include Unit 1. See Original
Proposal, 75 Fed. Reg. at 31,395–99 (identifying eleven units in Mississippi).
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
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the Service to expand the designation to Louisiana or Alabama, the two other
states in the frog’s historical range. See Revised Proposal, 76 Fed. Reg. at
59,776; Final Designation, 77 Fed. Reg. at 35,119, 35,121, 35,123–24.
The Service adopted this consensus expert conclusion, finding that
designating the occupied land in Mississippi was “not sufficient to conserve the
species.” Final Designation, 77 Fed. Reg. at 35,123. 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. Id. at 35,124–25. 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.” Id. at 35,123. In sum,
all of the experts agreed that designating occupied land alone would not be
sufficient to conserve the dusky gopher frog. Thus, the Service’s prerequisite
inadequacy finding—a finding that the Landowners did not challenge 13—was
not arbitrary and capricious.
Having satisfied this preliminary requirement, the Service was next
required to limit the critical-habitat designation to unoccupied areas that are
“essential for the conservation of the species.” 16 U.S.C. § 1532(5)(A)(ii). The
13 Amici supporting the Landowners do challenge this finding, and the Landowners
asserted at oral argument that they would contest this finding. The Landowners, however,
did not challenge this finding in either of their briefs on appeal. We therefore will not consider
it. See World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752 n.3 (5th
Cir. 2009) (“It is well-settled in this circuit that an amicus curiae generally cannot expand
the scope of an appeal to implicate issues that have not been presented by the parties to the
appeal.” (citation and internal quotation marks omitted)); see also Crane, 783 F.3d at 252
n.34 (explaining that a party waives an argument by failing to make it in the party’s opening
brief).
15
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Service focused its resources on locating additional ephemeral ponds. It
explained that it prioritized ephemeral ponds because of their rarity and great
importance for breeding, and because they are very difficult to replicate
artificially. See Final Designation, 77 Fed. Reg. at 35,123–24. The Service
further explained that additional breeding populations are necessary for the
frog’s recovery and to prevent excessive inbreeding. See id. at 35,121, 35,123–
24. Although the Service has created one artificial ephemeral pond in the
DeSoto National Forest in Mississippi, this artificial pond took ten years to
construct, and it is still unclear whether it will be successful as a breeding site.
See id. at 35,123. In contrast, as an expert explained at the public hearing on
the Revised Proposal, it is “much easier to restore a terrestrial habitat for the
gopher frog than to restore or build breeding ponds.” See also id. at 35123
(“Isolated, ephemeral ponds that can be used as the focal point for establishing
these populations are rare, and this is a limiting factor in dusky gopher frog
recovery.”). As the Service explained in the Final Designation, “[a]lthough
[DeSoto] is crucial to the survival of the frog because the majority of the
remaining frogs occur there, recovery of the species will require populations of
dusky gopher frog distributed across a broader portion of the species’ historic
distribution.” Id. at 35,125.
The Service therefore searched for isolated, ephemeral ponds within the
historical range of the frog in Alabama and Louisiana. See Final Designation,
77 Fed. Reg. at 35,124. The area in Alabama where the frog once lived has
since been replaced by a residential development. See id. The Service noted
that it was unable to find any breeding sites that the frog might use in the
future in Alabama. See id. In contrast, the Service explained that Unit 1’s five
ephemeral ponds are “intact and of remarkable quality.” Id. at 35,133. It noted
that the ponds in Unit 1 “are in close proximity to each other, which would
16
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allow movement of adult gopher frogs between them” and would “provide
metapopulation structure that supports long-term survival and population
resiliency.” Id. “Based on the best scientific information available to the
Service,” the Service concluded that “the five ponds in Unit 1 provide breeding
habitat that in its totality is not known to be present elsewhere within the
historic range of the dusky gopher frog.” Id. at 35,124.
Finally, in addition to ephemeral ponds, dusky gopher frogs also require
upland forested habitat and connected corridors that allow them to move
between their breeding and nonbreeding habitats. See id. at 35,131–32.
Looking to the upland terrestrial habitat surrounding Unit 1’s ephemeral
ponds, the Service relied on scientific measurements and data to draw a
boundary around Unit 1. The Service used digital aerial photography to map
the ponds and then to delineate critical-habitat units by demarcating a buffer
zone around the ponds by a radius of 621 meters (or 2,037 feet). Id. at 35,134.
This value, which was based on data collected during multiple gopher frog
studies, represented the median farthest distance that frogs had traveled from
breeding sites (571 meters or 1,873 feet) plus an extra 50 meters (or 164 feet)
“to minimize the edge effects of the surrounding land use.” Id. The Service
finally used aerial imagery to connect critical-habitat areas that were within
1,000 meters (or 3,281 feet) of each other “to create routes for gene flow
between breeding sites and metapopulation structure.” Id.
Altogether, the Service concluded:
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
17
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dusky gopher frog populations, which likely provides protection
from environmental stochasticity.
Id. 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.” Markle Interests, 40 F. Supp. 3d at 761 (applying
Chevron deference).
On appeal, the Landowners do not dispute the scientific or factual
support for the Service’s determination that Unit 1 is essential. 14 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.”
As Judge Feldman noted, Congress has not defined the word “essential”
in the ESA. Hence the Service has the authority to interpret the term. See
Sierra Club, 245 F.3d at 438 (“Once a species has been listed as endangered . . .
the ESA states that the Secretary ‘shall’ designate a critical habitat ‘to the
maximum extent prudent or determinable.’ The ESA leaves to the Secretary
the task of defining ‘prudent’ and ‘determinable.’” (quoting 16 U.S.C.
§ 1533(h))). To issue a formal rule designating critical habitat for the frog, the
Amici do challenge the scope of the Unit 1 designation, but we will not consider this
14
argument because the Landowners did not raise it on appeal. See World Wide St. Preachers
Fellowship, 591 F.3d at 752 n.3.
18
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Service necessarily had to interpret and apply the applicable ESA provisions,
including the word “essential.” See Nat'l R.R. Passenger Corp. v. Boston &
Maine Corp., 503 U.S. 407, 420 (1992) (“[W]e defer to an interpretation which
was a necessary presupposition of the [agency]’s decision.”); cf. S.D. ex rel.
Dickson v. Hood, 391 F.3d 581, 596 & n.13 (5th Cir. 2004) (explaining that,
when the Centers for Medicare and Medicaid Services are charged with
reviewing and approving state Medicaid plans to ensure that the plans conform
to the Act, the agency implicitly interprets the Act when granting approvals).
The Service issued the designation as a formal agency rule after two rounds of
notice and comment. Thus, the Service’s interpretation of the term “essential”
is entitled to Chevron deference. See Home Builders, 551 U.S. at 665 (applying
Chevron deference in the context of the ESA); Chevron, 467 U.S. at 842–44.
When, as here, “an agency’s decision qualifies for Chevron deference, we
will accept the agency’s reasonable construction of an ambiguous statute that
the agency is charged with administering.” Knapp, 796 F.3d at 455. The
question presented, then, is whether the Landowners have demonstrated that
the Service interpreted the ESA unreasonably when it deemed Unit 1
“essential” for the conservation of the dusky gopher frog. Although the
Landowners acknowledge that “the Service undoubtedly has some discretion
in interpreting the statutory language of the ESA,” they contend that the
Service “does not have the authority to apply the term ‘essential’ in a way that
is contrary to its plain meaning.” The Landowners do not explain what they
think the “plain meaning” of essential is, however, save to argue, circularly,
that we must “insist[ ]” that “‘essential’ must truly mean essential.” 15
15The dissent instead introduces two alternative definitions of “essential” from Black’s
Law Dictionary: “2. Of the utmost importance; basic and necessary. 3. Having real existence,
actual.” Dissent at 5. The dissent then goes on to cite MCI Telecommunications Corp. v. Am.
19
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We consider first their argument 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.
The statute does not support this argument. There is no habitability
requirement in the text of the ESA or the implementing regulations. The
statute requires the Service to designate “essential” areas, without further
defining “essential” to mean “habitable.” See Bear Valley Mut. Water Co. v.
Jewell, 790 F.3d 977, 994 (9th Cir. 2015) (upholding the designation of
unoccupied critical habitat, even though the area was not habitable by the
endangered species). The Landowners’ proposed extra-textual limit on the
designation of unoccupied land—habitability—effectively conflates the
standard for designating unoccupied land with the standard for designating
occupied land. See Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 919
(2015) (“Congress generally acts intentionally when it uses particular language
in one section of a statute but omits it in another.”). As Judge Feldman
insightfully observed, “[their position] is . . . contrary to the ESA; [the
Landowners] equate what Congress plainly differentiates: the ESA defines two
distinct types of critical habitat, occupied and unoccupied; only occupied
habitat must contain all of the relevant [physical or biological features].”
Markle Interests, 40 F. Supp. 3d at 761. Thus, the plain text of the ESA does
not require Unit 1 to be habitable. “[R]ather,” as Judge Feldman elaborated,
Tel. & Tel. Co., 512 U.S. 218, 229 (1994), for the proposition that “an agency's interpretation
of a statute is not entitled to deference when it goes beyond the meaning that the statute can
bear.” Dissent at 7. The dissent’s own alternative definitions distinguish MCI from this case.
In MCI, the agency advanced an interpretation of the word “modify” that flatly contradicted
the definition provided by “[v]irtually every dictionary [the Court] was aware of.” Id. at 225.
Here, in contrast, one of the dissent’s own definitions of essential—“of the utmost importance;
basic and necessary”—describes well a close system of ephemeral ponds, per the scientific
consensus that the Service relied upon. See infra note 20.
20
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“[the Service] is tasked with designating as critical unoccupied habitat so long
as it determines it is ‘essential for the conservation of the species’ and ‘only
when a designation limited to its present range would be inadequate to ensure
the conservation of the species.’” Id. at 762 (quoting 50 C.F.R. § 424.12(e)).
Here, the Service provided scientific data to support its finding that Unit 1 is
essential, and as Judge Feldman held, “[the Landowners] have not
demonstrated that [the Service’s] findings are implausible.” Id. Thus, the
Landowners have not shown that the Service employed an unreasonable
interpretation of the ESA when it found that the currently uninhabitable Unit
1 was essential for the conservation of the dusky gopher frog and designated
the land as critical habitat.
We consider next the argument 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 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.” Like their proposed
habitability requirement, the Landowners’ proposed temporal requirement—
considering whether the frog can live on the land “currently” or in the
“foreseeable future”—also lacks legal support and is undermined by the ESA’s
text. The ESA’s critical-habitat provisions do not require the Service to know
when a protected species will be conserved as a result of the designation. The
Service is required to designate unoccupied areas as critical habitat if these
areas are “essential for the conservation of the species.” 16 U.S.C.
§ 1532(5)(A)(ii). The statute defines “conservation” as “the use of all methods
and procedures which are necessary to bring any endangered species . . . to the
point at which the measures provided . . . are no longer necessary.” Id.
§ 1532(3); cf. Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544, 555 (9th Cir. 2016)
21
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(“The Act is concerned with protecting the future of the species[.]”). Neither of
these provisions sets a deadline for achieving this ultimate conservation goal.
See Home Builders Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983,
989 (9th Cir. 2010) (holding that the Service need not determine “exactly when
conservation will be complete” before making a critical-habitat designation).
And the Landowners do not explain why it is impossible to make an
essentiality determination without determining when (or whether) the
conservation goal will be achieved. See id. (“A seller of sporting goods should
be able to identify which rod and reel are essential to catching a largemouth
bass, but is not expected to predict when the customer will catch one.”). As
Judge Feldman concluded, “[the Service’s] failure (as yet) to identify how or
when a viable population of dusky gopher frogs will be achieved, as indifferent
and overreaching by the government as it appears, does not serve to invalidate
its finding that Unit 1 was part of the minimum required habitat for the frog’s
conservation.” Markle Interests, 40 F. Supp. 3d at 762–63. We also note that,
in contrast to the habitat-designation provision at issue here, the ESA’s
recovery-plan provisions do require the Service to estimate when a species will
be conserved. See 16 U.S.C. § 1533(f)(1)(B)(iii). Congress’s inclusion of a
conservation-timeline requirement for recovery plans, but omission of it for
critical-habitat designations, further underscores the weakness of the
Landowners’ argument. See MacLean, 135 S. Ct. at 919. 16
Moreover, we observe that the Landowners’ proposed temporal
requirement could effectively exclude all private land not currently occupied
16We further note that it was logical for Congress to require the Service to estimate a
timeline for achieving its conservation goals in a recovery plan but not to impose that
requirement for critical-habitat designations because there is no deadline for creating a
recovery plan, but there is a one-year deadline for designating critical habitat. See 16 U.S.C.
§ 1533(b)(6)(A)(ii), (b)(6)(C)(ii); see also Home Builders Ass’n of N. Cal., 616 F.3d at 990.
22
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by the species from critical-habitat designations. By the Landowners’ logic,
private landowners could trump the Service’s scientific determination that
unoccupied habitat is essential for the conservation of a species so long as they
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. Their logic would also seem to allow landowners whose land
is immediately habitable to block a critical-habitat designation merely by
declaring that they will not—now or ever—permit the reintroduction of the
species to their land. The Landowners’ focus on private-party cooperation as
part of the definition of “essential” finds no support in the text of the ESA.
Nothing in the ESA requires that private landowners be willing to participate
in species conservation. 17 Summing up the Landowners’ arguments on this
point, Judge Feldman observed that the Landowners “effectively ask the Court
to endorse—contrary to the express terms and scope of the statute—a private
landowner exemption from unoccupied critical-habitat designations. This, the
Third Branch, is the wrong audience for addressing this matter of policy.”
17 The statute requires the Service to base its decision on “the best scientific data
available.” 16 U.S.C. § 1533(b)(2). Here, the Service followed that command and made an
objective feasibility determination that the uplands surrounding the ephemeral ponds,
although currently lacking “the essential physical or biological features of critical habitat,”
are “restorable with reasonable effort.” Final Designation, 77 Fed. Reg. at 35,135. We find no
basis in the text of the statute for the “reasonable probability” test introduced by the dissent,
which looks to “many factors” including “whether a reasonable landowner would be likely to
undertake the necessary modifications.” Dissent at 13. Although a “reasonable landowner”
test has the sound of an objective test, the dissent does not make clear how such a test would
be applied in practice, nor how it would avoid taking into account the subjective intentions of
specific landowners. For example, the dissent says that in a scenario in which a
“landowner . . . enter[s] into an agreement to modify land so that it might be used as habitat,
there would be nothing ‘subjective’ in concluding that it is reasonably probable that the land
will actually be used at habitat.” Dissent at 13. A test that can come out differently depending
on the actual plans of specific landowners is, by definition, subjective.
23
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Markle Interests, 40 F. Supp. 3d at 769 n.40. We agree. Thus, the Landowners
have not shown that the Service employed an unreasonable interpretation of
the ESA when it found that Unit 1 was essential for the conservation of the
dusky gopher frog without first establishing that Unit 1 currently supports, or
in the “foreseeable future” will support, the conservation of the dusky gopher
frog.
We next consider the argument that that the Service has interpreted the
word “essential” unreasonably because its interpretation fails to place
“meaningful limits” on the Service’s power under the ESA. Thus, we consider
whether, in designating Unit 1, the Service abided the meaningful limits that
the ESA and the agency’s implementing regulations set on the Service’s
authority to designate unoccupied areas as critical habitat. Under the
regulations in effect at the time that Unit 1 was designated, the Service had to
find that the species’s occupied habitat was inadequate before it could even
consider designating unoccupied habitat as critical. 50 C.F.R. § 424.12(e). In
part, this preliminary determination provided a limit to the term “essential”
as it relates to unoccupied areas. Unoccupied areas could be essential only if
occupied areas were found to be inadequate for conserving the species. See Bear
Valley Mut. Water Co., 790 F.3d at 994 (recognizing that the inadequacy and
essentiality requirements overlap). Here, the Service made that threshold
inadequacy determination—a determination that the Landowners do not
challenge.
Next, under the ESA itself, the Service can designate unoccupied land
only if it is “essential for the conservation of the species.” 16 U.S.C.
§ 1532(5)(A)(ii). “Conservation” is defined as “the use of all methods and
procedures which are necessary to bring any endangered species . . . to the
point at which the measures provided . . . are no longer necessary.” Id.
24
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§ 1532(3) (emphasis added). In light of this definition, we find implausible the
Landowners’ parade of horribles in which they suggest that, if the Service can
designate an area like Unit 1 as critical habitat, it could designate “much of
the land in the United States” as well. They contend that “[b]ecause any land
may conceivably be turned into suitable habitat with enough time, effort, and
resources, th[e] [Service’s] interpretation gives the Service nearly limitless
authority to burden private lands with a critical habitat designation.” But we
find it hard to see how the Service would be able to satisfactorily explain why
randomly chosen land—whether an empty field or, as the Landowners suggest,
land covered in “buildings” and “pavement”—would be any more “necessary”
to a given species’ recovery than any other arbitrarily chosen empty field or
paved lot. 18 Here, the Service confirmed through peer review and two rounds
of notice and comment a scientific consensus as to the presence and rarity of a
critical (and difficult to reproduce) feature—the ephemeral ponds—which
18 Nor do we see how the Service could justify designating land that objectively—that
is, for scientific reasons—could never contribute to the conservation of a species—say, for
example, if the ephemeral ponds were located within a toxic spill zone that scientists
concluded could not be remediated. Where we differ critically from the dissent is on the
question whether the ESA provides any basis for taking into account subjective third-party
intentions when determining whether land could contribute to the conservation of a species.
We hold that it does not. Under our approach, it would still be arbitrary and capricious for
the Service to label as essential land that is objectively impossible to use for conservation. See
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (finding the National Highway Traffic Safety Administration’s rescission of a rule
requiring passive restraints in automobiles arbitrary and capricious because the agency did
not provide a “rational connection between the facts found and the choice made”); see also
Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229,
1243–44 (9th Cir. 2001) (finding the Fish and Wildlife Service’s issuance of an incidental-
take statement arbitrary and capricious because the evidence linking cattle grazing to an
effect on the razorback sucker was too speculative and “woefully insufficient”); Chem. Mfrs.
Ass’n v. E.P.A., 28 F.3d 1259, 1265–66 (D.C. Cir. 1994) (finding the Environmental Protection
Agency’s final rule designating a pollutant as high risk arbitrary and capricious because
“there [was] simply no rational relationship between the model [used in making the
determination] and the known behavior of the hazardous air pollutant to which it [was]
applied”).
25
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justified its finding that Unit 1 was essential for the conservation of the dusky
gopher frog. 19
In addition, the ESA requires the Service to base its finding of
essentiality on “the best scientific data available.” Id. § 1533(b)(2). This
requirement further cabins the Service’s power to make critical-habitat
designations. Here, the Final Designation was based on the scientific expertise
of the agency’s biologists and outside gopher frog specialists. If this scientific
support were not in the record, the designation could not stand. 20 But that is
19 We fail to see how the Service would be able to similarly justify as rational an
essentiality finding as to arbitrarily chosen land. In contrast, the dissent, similar to the
Landowners, contends that “[i]t is easily conceivable that ‘the best scientific data available’
would lead scientists to conclude that an empty field that is not currently habitable could be
altered to become habitat for an endangered species.” Dissent at 13-14. Even assuming that
to be true, it does not follow that scientists or the Service would or could then reasonably call
an empty field essential for the conservation of a species. If the field in question were no
different than any other empty field, what would make it essential? Presumably, if the field
could be modified into suitable habitat, so could any of the one hundred or one thousand other
similar fields. If the fields are fungible, it would be arbitrary for the Service to label any
single one “essential” to the conservation of a species. It is only by overlooking this point that
the dissent can maintain that our approval of the Service’s reading of “essential” will “mean[ ]
that virtually any part of the United States could be designated as ‘critical habitat’ for any
given endangered species so long as the property could be modified in a way that would
support introduction and subsequent conservation of the species on it.” Dissent at 6
(emphasis added).
20 The dissent also takes aim at our acceptance of the Service’s scientifically grounded
essentiality finding in this case, contending that, under our decision, the Service can
designate any land as critical habitat whenever it contains a single one of the “physical or
biological features” essential to the conservation of the species at issue. 16 U.S.C.
§ 1532(5)(A)(i). Dissent at 14-15. We create no such generalized rule. We hold only that in
this case, substantial, consensus, scientific evidence in the record supports the Service’s
conclusion that the ephemeral ponds present on Unit 1 are essential for the conservation of
the dusky gopher frog. See, e.g., Final Designation, 77 Fed. Reg. at 35123 (summarizing the
scientific consensus that the rarity of isolated, ephemeral ponds “is a limiting factor in dusky
gopher frog recovery”). The ponds cannot be separated from the land that contains them.
Thus, if the ponds are essential, then Unit 1, which contains the ponds, is essential for the
conservation of the dusky gopher frog. In general, the dissent seeks to decouple the Service’s
“essentiality” finding from its scientific determination process, turning it into a purely legal
standard. We decline to do so, with the good reason that the ESA specifically requires that
critical habitat determinations be based on “scientific data.” See 16 U.S.C. § 1533(b)(2).
26
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not the situation here, and the Landowners do not challenge the consensus
scientific data on which the Service relied. The Landowners have not shown
that the Service employed an interpretation of the ESA that is inconsistent
with the meaningful limits that the ESA and the agency’s implementing
regulations set on the Service’s authority to designate unoccupied areas as
critical habitat. 21
In sum, the Landowners have not established that the Service
interpreted the ESA unreasonably—and was thus undeserving of Chevron
deference—when it found that Unit 1 was essential for the conservation of the
dusky gopher frog. Likewise, the Landowners have not shown that the
Service’s essentiality finding failed to “satisfy minimum standards of
rationality,” 10 Ring Precision, 722 F.3d at 723, which means that they have
not shown that the Service acted arbitrarily or capriciously, either.
Finally, the Landowners contend that it is improper to protect Unit 1
with a critical-habitat designation when there are other ways to ensure that
Unit 1 will assist with the conservation of the gopher frog. It is true that the
Service could manage Unit 1 by purchasing the land. See 16 U.S.C. § 1534(a).
But the legal availability of other statutory conservation mechanisms, some
arguably more intrusive of private property interests, does not undercut the
Service’s separate statutory duty to designate as critical habitat unoccupied
areas that are essential for the conservation of the species. See id.
21In response to the dissent’s policy concerns about ever-expanding designations, we
also note that the ESA limits critical-habitat designations on the back end as well, because
successful conservation through critical-habitat designation ultimately works towards
undesignation. See, e.g., Removal of the Louisiana Black Bear From the Federal List of
Endangered and Threatened Wildlife and Removal of Similarity-of-Appearance Protections
for the American Black Bear, 81 Fed. Reg. 13,124, 13,171 (March 11, 2016) (to be codified at
50 C.F.R. pt. 17) (final rule removing Louisiana black bear from endangered species list and,
accordingly, “removing the designated critical habitat for the Louisiana black bear”).
27
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§ 1533(a)(3)(A)(i) (“The Secretary . . . to the maximum extent prudent and
determinable . . . shall . . . designate any habitat of [an endangered] species
which is then considered to be critical habitat . . . .” (emphasis added)).
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.” Markle Interests, 40 F. Supp. 3d at 759–60.
C. Decision Not to Exclude Unit 1
In addition to attacking the Service’s conclusion that Unit 1 is essential
for the conservation of the dusky gopher frog, the Landowners also challenge
the Service’s conclusion that the economic impacts on Unit 1 are not
disproportionate. See Final Designation, 77 Fed. Reg. at 35,141. The
Landowners argue that because the benefits of excluding Unit 1 from the
designation clearly outweigh the benefits of including it in the designation, the
Service’s decision is arbitrary and capricious. The Landowners contend that
because Unit 1 is not currently habitable by the dusky gopher frog, the land
provides no biological benefit to the frog. They emphasize that Unit 1, by
contrast, bears a potential loss of development value of up to $33.9 million over
twenty years.
The ESA mandates that the Service “tak[e] into consideration the
economic impact . . . of specifying any particular area as critical habitat.” 16
U.S.C. § 1533(b)(2). After it takes this impact into consideration, the Service
may exclude any area from critical habitat if [it] determines that
the benefits of such exclusion outweigh the benefits of specifying
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such area as part of the critical habitat, unless [it] determines,
based on the best scientific and commercial data available, that
the failure to designate such area as critical habitat will result in
the extinction of the species concerned.
Id. (emphasis added). The Service argues that once it has fulfilled its statutory
obligation to consider economic impacts, a decision to not exclude an area is
discretionary and thus not reviewable in court. The Service is correct. Under
the APA, decisions “committed to agency discretion by law” are not reviewable
in federal court. 5 U.S.C. § 701(a)(2). An action is committed to agency
discretion when there is “no meaningful standard against which to judge the
agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985).
“[I]f no judicially manageable standards are available for judging how and
when an agency should exercise its discretion, then it is impossible to evaluate
agency action for ‘abuse of discretion.’” Id.
The only other circuit court that has confronted this issue has recognized
that there are no manageable standards for reviewing the Service’s decision
not to exercise its discretionary authority to exclude an area from a critical-
habitat designation. See Bear Valley Mut. Water Co., 790 F.3d at 989–90. It
therefore held that the decision not to exclude is unreviewable. Id.; see also
Bldg. Indus. Ass’n of Bay Area v. U.S. Dep’t of Commerce, No. 13-15132, 2015
WL 4080761, at *7–8 (9th Cir. July 7, 2015), aff’g No. C 11-4118, 2012 WL
6002511 (N.D. Cal. Nov. 30, 2012). Similarly, every district court that has
addressed this issue has also held that the decision not to exclude is not subject
to judicial review. See Aina Nui Corp. v. Jewell, 52 F. Supp. 3d 1110, 1132 n.4
(D. Haw. 2014) (“The Court does not review the Service’s ultimate decision not
to exclude . . . , which is committed to the agency’s discretion.”); Cape Hatteras
Access Pres. Alliance v. U.S. Dep’t of Interior, 731 F. Supp. 2d 15, 29 (D.D.C.
2010) (“The plain reading of the statute fails to provide a standard by which to
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judge the Service’s decision not to exclude an area from critical habitat.”);
Home Builders Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., No. CIV. S-05-
0629, 2006 WL 3190518, at *20 (E.D. Cal. Nov. 2, 2006) (“[T]he court has no
substantive standards by which to review the [agency’s] decisions not to
exclude certain tracts based on economic or other considerations, and those
decisions are therefore committed to agency discretion.”).
We see no reason to chart a new path on this issue in concluding that we
cannot review the Service’s decision not to exercise its discretion to exclude
Unit 1 from the critical-habitat designation. Section 1533(b)(2) articulates a
standard for reviewing the Service’s decision to exclude an area. But the
statute is silent on a standard for reviewing the Service’s decision to not
exclude an area. Put another way, the section establishes a discretionary
process by which the Service may exclude areas from designation, but it does
not articulate any standard governing when the Service must exclude an area
from designation. See Bear Valley Mut. Water Co., 790 F.3d at 989 (“[W]here a
statute is written in the permissive, an agency’s decision not to act is
considered presumptively unreviewable because courts lack ‘a focus for judicial
review . . . to determine whether the agency exceeded its statutory powers.’”
(quoting Heckler, 470 U.S. at 832)). Thus, even were we to assume that the
Landowners are correct that the economic benefits of exclusion outweigh the
conservation benefits of designation, the Service is still not obligated to exclude
Unit 1. That decision is committed to the agency’s discretion and is not
reviewable.
The Supreme Court’s recent decision in Michigan v. EPA, 135 S. Ct. 2699
(2015), does not compel a contrary conclusion. In Michigan, the Environmental
Protection Agency (“EPA”) had interpreted a provision of the Clean Air Act to
not require the consideration of costs when deciding whether to regulate
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hazardous emissions from power plants. Id. at 2706. Although the Supreme
Court held that the EPA misinterpreted the statute, the Court emphasized
that it was not requiring the agency “to conduct a formal cost-benefit analysis
in which each advantage and disadvantage is assigned a monetary value.” Id.
at 2711. The Court further explained that “[i]t will be up to the Agency to
decide (as always, within the limits of reasonable interpretation) how to
account for cost.” Id.
Unlike the provision of the Clean Air Act at issue in Michigan, the ESA
explicitly mandates “consideration” of “economic impact.” 16 U.S.C.
§ 1533(b)(2); see Bennett, 520 U.S. at 172. The Service fulfilled this
requirement by commissioning an economic report by Industrial Economics,
Inc. That analysis estimated the economic impact on Unit 1, and to further
refine that analysis, it included three impact scenarios. The report noted that
Unit 1 bears a potential loss of development value ranging from $0 to $33.9
million over twenty years. See Final Designation, 77 Fed. Reg. at 35,140–41;
This potential loss depends on a number of contingencies that may or may not
arise, including future development projects, the nature of federal agency
approval that is required for those projects, and possible limits that are
imposed after any consultation that accompanies federal agency action. As has
been recently recognized, the statute does not require a particular methodology
for considering economic impact. See Bldg. Indus. Ass’n of Bay Area, 2015 WL
4080761, at *5–6. And here on appeal, the Landowners do not challenge the
methodology that the Service used when analyzing the economic impact on
Unit 1; instead, the Landowners challenge the Service’s bottom-line conclusion
not to exclude Unit 1 on the basis of that economic impact. That conclusion is
not reviewable.
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II. Commerce Clause
Having concluded that the Service’s designation of Unit 1 as critical
habitat was not arbitrary and capricious, we must next consider the
Landowners’ alternative argument that the ESA exceeds Congress’s powers
under the Commerce Clause. The Commerce Clause gives Congress the power
“[t]o regulate Commerce . . . among the several States.” U.S. Const. art. I, § 8,
cl. 3. In United States v. Lopez, the Supreme Court defined three broad
categories of federal legislation that are consistent with this power. 514 U.S.
549, 558 (1995). This case concerns the third Lopez category—that is, whether
the federal action “substantially affect[s] interstate commerce.” Id. at 558–59
(citations omitted).
The Landowners concede that, “properly limited and confined to the
statutory definition,” the critical-habitat provision of the ESA is a
constitutional exercise of Congress’s Commerce Clause authority. They
maintain, however, that the designation of Unit 1 as critical habitat for the
dusky gopher frog exceeds the scope of an otherwise constitutional power.
Viewed this narrowly, the designation of Unit 1 is intrastate (not interstate)
activity. The Landowners further argue that “[t]here is simply no rational basis
to conclude that the use of Unit 1 will substantially affect interstate
commerce.” In support of this narrow framing of the issue, the Landowners
imply that it is inappropriate to aggregate the effect of designating Unit 1 with
the effect of all other critical-habitat designations nationwide. Instead, the
Landowners argue that we should analyze the commercial impact of the Unit
1 designation independent of all other designations. But as Judge Feldman
explained, “each application of the ESA is not itself subject to the same tests
for determining whether the underlying statute is a constitutional exercise of
the Commerce Clause.” Markle Interests, 40 F. Supp. 3d at 758. We agree with
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Judge Feldman that “the [Landowners’] constitutional claim is foreclosed by
binding precedent.” Id.
The Supreme Court has outlined four considerations that are relevant
when analyzing whether Congress can regulate purely intrastate activities
under the third Lopez prong. See United States v. Morrison, 529 U.S. 598, 609–
12 (2000). First, courts should consider whether the intrastate activity “in
question has been some sort of economic endeavor.” Id. at 611. Second, courts
should consider whether there is an “express jurisdictional element” in the
statute that might limit its application to instances that “have an explicit
connection with or effect on interstate commerce.” Id. at 611–12. The next
consideration that should inform the analysis is legislative history and
congressional findings on the effect that the subject of the legislation has on
interstate commerce. Id. at 612. Finally, courts should evaluate whether the
link between the intrastate activity and its effect on interstate commerce is
attenuated. Id. The Landowners’ constitutional challenge can be distilled to
the question of whether we can properly analyze the Unit 1 designation
aggregated with all other critical-habitat designations nationwide. This
question falls under the first consideration articulated in Morrison. Because
the Landowners concede that the critical-habitat provision of the ESA is
“within the legitimate powers of Congress,” we need focus on only the first
consideration if we find that aggregation is appropriate.
The first consideration is whether the regulated intrastate activity is
economic or commercial in nature. Id. at 611. The question thus arises: what
is the regulated activity that we must analyze? See GDF Realty Invs., Ltd. v.
Norton, 326 F.3d 622, 633 (5th Cir. 2003). In GDF Realty, where we examined
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the “take” provision 22 of the ESA, we emphasized that we had to analyze the
regulation of endangered species takes, not the commercial motivations of the
plaintiff–developers who were challenging the statute. Id. at 636. Applying
GDF Realty here, the regulated activity in question is the designation of Unit
1 as critical habitat, not the Landowners’ long-term development plans.
The next issue is whether the designation of Unit 1 as critical habitat is
economic or commercial in nature. “[W]hether an activity is economic or
commercial is to be given a broad reading in this context.” Id. at 638. In certain
cases, an intrastate activity may have a direct relationship to commerce and
therefore the intrastate activity alone may substantially affect interstate
commerce. Alternatively, “the regulation can reach intrastate commercial
activity that by itself is too trivial to have a substantial effect on interstate
commerce but which, when aggregated with similar and related activity, can
substantially affect interstate commerce.” United States v. Ho, 311 F.3d 589,
599 (5th Cir. 2002).
The designation of Unit 1 alone may not have a direct relationship to
commerce, but under the aggregation principle, the designation of Unit 1
survives constitutional muster. Under this principle, the intrastate activity
can be regulated if it is “an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless the
intrastate activity were regulated.” Gonzales v. Raich, 545 U.S. 1, 36 (2005)
(quoting Lopez, 514 U.S. at 561). Thus, there are two factors we must consider:
(1) whether the provision mandating the designation of critical habitat is part
22See 16 U.S.C. § 1532(19) (“The term ‘take’ means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”); id.
§ 1538(a)(1)(B) (making it unlawful to “take” an endangered species).
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of an economic regulatory scheme, and (2) whether designation is essential to
that scheme.
We have already concluded that the ESA is an economic regulatory
scheme. See GDF Realty, 326 F.3d at 639 (“ESA’s protection of endangered
species is economic in nature.”); id. at 640 (“ESA is an economic regulatory
scheme . . . .”). Congress enacted the ESA to curb species extinction “as a
consequence of economic growth and development untempered by adequate
concern and conservation.” 16 U.S.C. § 1531(a)(1). Because the ESA’s drafters
sought to protect the “incalculable” value of biodiversity, the ESA prohibits
interstate and foreign commerce in endangered species. See id.
§ 1538(a)(1)(E)–(F); GDF Realty, 326 F.3d at 639 (citation omitted). Finally,
habitat protection and management—which often intersect with commercial
development—underscore the economic nature of the ESA and its critical-
habitat provision. See 16 U.S.C. § 1533(f)(1)(A) (requiring that the Secretary
prioritize implementing recovery plans for “those species that are, or may be,
in conflict with construction or other development projects or other forms of
economic activity”); see also id. § 1533(a)(1)(B) (listing the “overutilization [of
a species] for commercial . . . purposes” as one of the factors endangering or
threatening species).
But it is not sufficient that the ESA is an economic regulatory scheme.
The critical-habitat provision must also be an essential component of the ESA.
If the process of designating critical habitat is “an essential part of a larger
regulation of economic activity,” then whether that process—designation—
“ensnares some purely intrastate activity is of no moment.” Raich, 545 U.S. at
22. “[T]he de minimis character of individual instances arising under that
statute is of no consequence.” Id. at 17 (citations and internal quotation marks
omitted). When Congress has regulated a class of activities, we “have no power
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to excise, as trivial, individual instances of the class.” Id. at 23 (citation and
internal quotation marks omitted). We conclude that designating critical
habitat is an essential part of the ESA’s economic regulatory scheme.
This conclusion is consistent with our analysis of the ESA’s “take”
provision in GDF Realty. There, we held that “takes” of an endangered species
that lived only in Texas could be aggregated with takes of other endangered
species nationwide to survive a Commerce Clause challenge. GDF Realty, 326
F.3d at 640–41. That case concerned the Service’s regulation of takes of six
subterranean endangered species (“the Cave Species”) located solely in two
counties in Texas. Id. at 625. Similar to the Landowners here, the owners of
some of the land under which these species lived wanted to develop the land
into a commercial and residential area; they sued the government, claiming
that the take provision of the ESA, as applied to the Cave Species, exceeded
the boundaries of the Commerce Clause. Id. at 624, 626. Addressing this claim,
we upheld the take provision. We explained that, in the aggregate, takes of all
endangered species have a substantial effect on interstate commerce. See id.
at 638–40. Because of the “interdependence of [all] species,” we held that
regulating the takes of the Cave Species was an essential part of the larger
regulatory scheme of the ESA, in that, without this regulation, the regulatory
scheme could be undercut by piecemeal extinctions. Id. at 639–40. Every other
circuit court that has addressed similar challenges has also upheld the ESA as
a valid exercise of Congress’s Commerce Clause power. See Gibbs v. Babbitt,
214 F.3d 214 F.3d 483, 497–98 (4th Cir. 2000); San Luis & Delta–Mendota
Water Auth. v. Salazar, 638 F.3d 1163, 1177 (9th Cir. 2011); Wyoming v. U.S.
Dep’t of Interior, 442 F.3d 1262, 1264 (10th Cir. 2006) (per curiam), aff’g 360
F. Supp. 2d 1214, 1240 (D. Wyo. 2005); Ala.–Tombigbee Rivers Coal. v.
Kempthorne, 477 F.3d 1250, 1274 (11th Cir. 2007); Rancho Viejo, LLC v.
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Norton, 323 F.3d 1062, 1080 (D.C. Cir. 2003); Nat’l Ass’n of Home Builders v.
Babbitt, 130 F.3d 1041, 1049–57 (D.C. Cir. 1997). The Landowners have not
identified any federal court of appeals that has held otherwise.
This caselaw compels the same conclusion here. For one, we see no basis
to distinguish the ESA’s prohibition on “takes” from the ESA’s mandate to
designate critical habitat. As Congress recognized, one of the primary factors
causing a species to become endangered is “the present or threatened
destruction, modification, or curtailment of its habitat or range.” 16 U.S.C.
§ 1533(a)(1)(A). Because of the link between species survival and habitat
preservation, the statute imposes a mandatory duty on the Service to designate
critical habitat for endangered species “to the maximum extent prudent and
determinable.” Id. § 1533(a)(3)(A). Indeed, the ESA includes an express
purpose of conserving “the ecosystems upon which endangered species . . .
depend.” Id. § 1531(b); see also GDF Realty, 326 F.3d at 640 (“In fact, according
to Congress, the ‘essential purpose’ of the ESA is ‘to protect the ecosystems
upon which we and other species depend.’” (quoting H.R. Rep. No. 93–412, at
10)). Allowing a particular critical habitat—one that the Service has already
found to be essential for the conservation of the species—to escape designation
would undercut the ESA’s scheme by leading to piecemeal destruction of
critical habitat. We therefore conclude that the critical-habitat provision is an
essential part of the ESA, without which the ESA’s regulatory scheme would
be undercut. Cf. Ala.–Tombigbee Rivers Coal., 477 F.3d at 1274 (holding that
“the ‘comprehensive scheme’ of species protection contained in the Endangered
Species Act has a substantial effect on interstate commerce” and that the
process of listing species as endangered or threatened is “an essential part of
that larger regulation of economic activity” (citation and internal quotation
marks omitted)).
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Given this conclusion, the designation of Unit 1 may be aggregated with
all other critical-habitat designations. As Judge Feldman correctly observed,
“[w]here the class of activities is regulated and that class is within the reach
of federal power, the courts have no power to excise, as trivial, individual
instances of the class.” Markle Interests, 40 F. Supp. 3d at 759 (alteration in
original) (quoting Raich, 545 U.S. at 23) (internal quotation marks omitted).
“[W]hen a general regulatory statute bears a substantial relation to commerce,
the de minimis character of individual instances arising under that statute is
of no consequence.” Raich, 545 U.S. at 17 (citations and internal quotation
marks omitted). We therefore will not look at the designation of Unit 1 in
isolation, but instead we consider it aggregated with all other critical-habitat
designations. Judge Feldman reached the same conclusion, explaining that,
“[a]ggregating the regulation of activities that adversely modify the frog’s
critical habitat”—including the isolated designation of Unit 1—“with the
regulation of activities that affect other listed species’ habitat, the designation
of critical habitat by the [Service] is a constitutionally valid application of a
constitutionally valid Commerce Clause regulatory scheme.” Markle Interests,
40 F. Supp. 3d at 759. Because the Landowners concede that the critical-
habitat provision of the ESA is a valid exercise of Congress’s Commerce Clause
authority, we can likewise conclude that the application of the ESA’s critical-
habitat provision to Unit 1 is a constitutional exercise of the Commerce Clause
power. 23
23 Although the Landowners’ concession truncates our analysis, we observe that the
other three considerations articulated in Morrison also weigh in favor of concluding that the
critical-habitat provision of the ESA is constitutional as applied to the dusky gopher frog.
Although there is no jurisdictional element in the statute limiting its application to instances
affecting interstate commerce, the “interdependence of species” underscores that critical-
habitat designations affect interstate commerce. GDF Realty, 326 F.3d at 640. In this sense,
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III. National Environmental Policy Act
Finally, the Landowners contend that the Service violated NEPA by
failing to prepare an environmental impact statement before designating Unit
1 as critical habitat. If proposed federal action will “significantly affect[ ] the
quality of the human environment,” NEPA requires the relevant federal
agency to provide an environmental impact statement for the proposed action.
42 U.S.C. § 4332(2)(C). In Sabine River Authority, we explained that an
environmental impact statement “is not required for non major action or a
major action which does not have significant impact on the environment.” 951
F.2d at 677 (citation and internal quotation marks omitted). This standard
the ESA’s critical-habitat provision “is limited to instances which ‘have an explicit connection
with or effect on interstate commerce.’” Id. (quoting Morrison, 529 U.S. at 611–12).
Next, the congressional findings, legislative history, and statutory provisions indicate
that the regulated activity has an effect on interstate commerce. See 16 U.S.C. § 1531(a)(1)
(“The Congress finds and declares that . . . various species of fish, wildlife, and plants in the
United States have been rendered extinct as a consequence of economic growth and
development untempered by adequate concern and conservation . . . .”); id. § 1533(a)(1)(A)–
(B) (acknowledging “the present or threatened destruction, modification, or curtailment of [a
species’s] habitat or its range” and the “overutilization [of species] for commercial . . .
purposes” as factors leading to species endangerment); Tenn. Valley Auth., 437 U.S. at 177–
78 (summarizing the legislative history of the ESA); Gibbs, 214 F.3d at 495 (discussing the
legislative history of the ESA and the possibility of renewing a commercial market in a
species once it is no longer endangered or threatened (citing S. Rep. No. 91-526, at 3 (1969)));
see also San Luis & Delta–Mendota Water Auth., 638 F.3d at 1176.
Finally, the link between critical-habitat designation and its effect on interstate
commerce is not too attenuated. The ESA is economic in nature, and Congress has made
critical-habitat designation a mandatory component of the regime. See 16 U.S.C.
§ 1533(a)(3)(A)(i) (stating that the Service “shall . . . designate any habitat of [an endangered]
species which is then considered to be critical habitat” (emphasis added)). Moreover, as this
case highlights, any future regulation of Unit 1 or other critical habitat would occur if the
Landowners’ commercial development plans triggered Section 7 consultation. Thus, the link
to interstate commerce is not too attenuated for purposes of Commerce Clause analysis. See
Morrison, 529 U.S. at 611 (explaining that the statutes challenged in Lopez and Morrison fell
outside Congress’s Commerce Clause authority because “neither the actors nor their conduct
ha[d] a commercial character, and neither the purposes nor the design of the statute ha[d]
an evident commercial nexus” (citation and internal quotation marks omitted)). For these
additional reasons, the application of the ESA’s critical-habitat provision is constitutional as
applied to the dusky gopher frog.
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necessarily means that if federal action will not result in any change to the
environment, then the action does not trigger NEPA’s impact-statement
requirement. See id. at 679 (noting that federal action “did not effectuate any
change to the environment which would otherwise trigger the need to prepare
an [environmental impact statement]”); see also Metro. Edison Co. v. People
Against Nuclear Energy, 460 U.S. 766, 774 (1983) (explaining that no
environmental impact statement is required if health damage stemming from
federal action “would not be proximately related to a change in the physical
environment”); City of Dallas, Tex. v. Hall, 562 F.3d 712, 723 (5th Cir. 2009)
(holding that an environmental impact statement was not required when the
federal action “[did] not effect a change in the use or character of land or in the
physical environment”).
Judge Feldman correctly held that the designation of Unit 1 does not
trigger NEPA’s impact-statement requirement because the designation “does
not effect changes to the physical environment.” Markle Interests, 40 F. Supp.
3d at 768. The designation also does not require the Landowners to take action
as a result of the designation. As Judge Feldman correctly observed, “the ESA
statutory scheme makes clear that [the Service] has no authority to force
private landowners to maintain or improve the habitat existing on their land.”
Id. (footnote and citation omitted). We agree that the Service was not required
to complete an environmental impact statement before designating Unit 1 as
critical habitat for the dusky gopher frog.
Alternatively, this claim is resolved on the threshold issue of the
Landowners’ standing to raise this NEPA claim. A plaintiff bringing a claim
under NEPA must not only have Article III standing to pursue the claim, but
also fall within the zone of interests sought to be protected under the statute.
See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); Sabine River Auth.,
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951 F.2d at 675 (recognizing that the zone-of-interests test applies to
challenges under NEPA). Other circuit courts have held that “a plaintiff who
asserts purely economic injuries does not have standing to challenge an agency
action under NEPA.” Nev. Land Action Ass’n v. U.S. Forest Serv., 8 F.3d 713,
716 (9th Cir. 1993) (citing cases from the Fourth, Eighth, Ninth, and D.C.
Circuits). Consistent with this conclusion, we have observed in dicta that a
“disappointed contractor” who was injured by an easement that prevented
development opportunities would not have standing under the zone-of-
interests test because “NEPA was not designed to protect contractors’ rights:
it was designed to protect the environment.” Sabine River Auth., 951 F.2d at
676. The Landowners’ asserted injuries here are similarly economic, not
environmental: lost future development and lost property value. These
economic injuries do not fall within the zone of interests protected by NEPA,
and the Landowners therefore lack standing to sue to enforce NEPA’s impact-
statement requirement.
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district
court.
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PRISCILLA R. OWEN, Circuit Judge, 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” 1 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.” 2
The majority opinion interprets the Endangered Species Act 3 to allow
the Government to impose restrictions on private land use even though the
land: is not occupied by the endangered species and has not been for more than
fifty years; is not near areas inhabited by the species; cannot sustain the
species without substantial alterations and future annual maintenance,
neither of which the Government has the authority to effectuate, as it concedes;
and does not play any supporting role in the existence of current habitat for
the species. If the Endangered Species Act permitted the actions taken by the
Government in this case, then vast portions of the United States could be
1 16 U.S.C. § 1532(5)(A)(ii) (“The term ‘critical habitat’ for a threatened species
means . . . specific areas outside the geographical area occupied by the species at the time it
is listed [as endangered], upon a determination by the Secretary that such areas are essential
for the conservation of the species.”).
2 Id.
3 Id. § 1531 et seq.
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designated as “critical habitat” because it is theoretically possible, even if not
probable, that land could be modified to sustain the introduction or
reintroduction of an endangered species.
The majority opinion upholds the governmental action here on nothing
more than the Government’s hope or speculation that the landowners and
lessors of the 1,544 acres at issue will pay for removal of the currently existing
pine trees used in commercial timber operations and replace them with
another tree variety suitable for dusky gopher frog habitat, and perform other
modifications as well as future annual maintenance, that might then support
the species if, with the landowners’ cooperation, it is reintroduced to the area.
The language of the Endangered Species Act does not permit such an expansive
interpretation and consequent overreach by the Government.
Undoubtedly, the ephemeral ponds on the property at issue are
somewhat rare. But it is undisputed that the ponds cannot themselves sustain
a dusky gopher frog population. It is only with significant transformation and
then, annual maintenance, each dependent on the assent and financial
contribution of private landowners, that the area, including the ponds, might
play a role in conservation. The Endangered Species Act does not permit the
Government to designate an area as “critical habitat,” and therefore use that
designation as leverage against the landowners, based on one feature of an
area when that one feature cannot support the existence of the species and
significant alterations to the area as a whole would be required.
The majority opinion’s holding is unprecedented and sweeping.
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I
A Final Rule 4 of the United States Fish and Wildlife Service (the
“Service”) designated 12 units of land encompassing 6,477 acres as “critical
habitat” 5 for the dusky gopher frog. Eleven of those units, totaling 4,933 acres,
are in four counties in Mississippi, 6 and they are not at issue in this appeal. It
is only the owners and lessors of the twelfth unit, comprised of 1,544 acres in
Louisiana and denominated Unit 1 by the Service, 7 that have appealed the
designation. The dusky gopher frog species was last seen in Louisiana in 1965
in one small pond located on Unit 1. 8
The Service specifically found in its Final Rule that Unit 1 contains only
one of the physical or biological features and habitat characteristics required
to sustain the species’ life-history processes. 9 That characteristic is the
existence of five ephemeral ponds on the Louisiana property. The Service
acknowledged that the other necessary characteristics were lacking, finding,
among its other conclusions, that “the surrounding uplands are poor-quality
terrestrial habitat for dusky gopher frogs.” 10 While the Service was of the
opinion that “[a]lthough the uplands associated with the ponds do not currently
contain the essential physical or biological features of critical habitat, we
believe them to be restorable with reasonable effort” 11 to permit habitation, the
4 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for
Dusty Gopher Frog, 77 Fed. Reg. 35,118 (June 12, 2012).
5 16 U.S.C. § 1532(5)(A).
6 77 Fed. Reg. at 35,118.
7 Id. at 35,118, 35,135.
8 Id. at 35,135.
9 Id. at 35,131.
10 Id. at 35,133.
11 Id. at 35,135.
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Service candidly recognized in the Final Rule that it could not undertake any
efforts to change the current features of the land or to move frogs onto the land
without the permission and cooperation of the owners of the land. 12 It cited no
evidence, and there is none, that “reasonable efforts” would in fact be made to
restore “the essential physical or biological features of critical habitat” on Unit
1. The Service cited only its “hope” that such alterations would be taken by
the landowners. 13
In particular, the Service found that an open-canopied longleaf pine
ecosystem is necessary for the habitat of this species of frog. 14 Approximately
ninety percent of the property is currently covered with closed-canopy loblolly
pine plantations. These trees would have to be removed or burned and then
replaced with another tree variety to allow the establishment of the habitat
that the Service has concluded is necessary for the breeding and sustaining of
a dusky gopher frog population. It is 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.
12 Id. at 35,123 (“Although we have no existing agreements with the private
landowners of Unit 1 to manage this site to improve habitat for the dusky gopher frog, or to
move the species there, we hope to work with the landowners to develop a strategy that will
allow them to achieve their objectives for the property . . . . However, these tools and
programs are voluntary, and actions such as habitat management through prescribed
burning, or frog translocations to the site, cannot be implemented without the cooperation
and permission of the landowner.”).
13 Id. (noting “we hope to work with the landowners”).
14 Id. at 35,129.
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II
Review of the Service’s decisions under the Endangered Species Act is
governed by the Administrative Procedure Act (APA). 15 The Service’s
designation of the land at issue as “critical habitat” was “not in accordance
with law” and was “in excess of statutory . . . authority” within the meaning of
the APA. 16
The Endangered Species Act defines “critical habitat” as:
(i) the specific areas within the geographical area occupied
by the species, at the time it is listed in accordance with the
provisions of section 1533 of this title, 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
(ii) specific areas outside the geographical area occupied by
the species at the time it is listed in accordance with the provisions
of section 1533 of this title, upon a determination by the Secretary
that such areas are essential for the conservation of the species. 17
The Final Rule reflects that “Unit 1 is not currently occupied nor was it
occupied at the time the dusky gopher frog was listed [as an endangered
species].” 18 Accordingly, the authority of the Service to designate this area as
“critical habitat” is governed by subsection (ii). The statute requires that Unit
15 5 U.S.C. §§ 702, 704, 706; see Bennett v. Spear, 520 U.S. 154, 171-75 (1997) (holding
that a claim of the Service’s “maladministration of the ESA” is not reviewable under 16
U.S.C. § 1540(g)(1)(A) or (C) (citizen-suit provisions of the ESA) but is reviewable under the
APA); 5 U.S.C. § 702 (“A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof.”).
16 5 U.S.C. § 706(2)(A), (C).
17 16 U.S.C. 1532(5)(A)(ii).
18 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat
for Dusty Gopher Frog, 77 Fed. Reg. 35,118, 35,123 (June 12, 2012).
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1 must be “essential for the conservation of the species” or else it cannot be
designated as “critical habitat.”
The word “essential” means more than desirable. Black’s Law
Dictionary defines “essential” as “2. Of the utmost importance; basic and
necessary. 3. Having real existence, actual.” 19 The Service’s conclusion that
Unit 1 is “essential” for the conservation of the dusky gopher frog contravenes
these definitions. Unit 1 is not “actual[ly]” playing any part in the conservation
of the endangered frog species. Nor is land “basic and necessary” for the
conservation of a species when it cannot support the existence of the
endangered species unless the physical characteristics of the land are
significantly modified. This is particularly the case when the Government is
powerless to effectuate the desired transformation unless it takes (condemns)
the property and funds these efforts. There is no evidence that the
modifications and maintenance necessary to transform Unit 1 into habitat will
be undertaken by anyone.
The Government’s, and the majority opinion’s, interpretation of
“essential” means that virtually any part of the United States could be
designated as “critical habitat” for any given endangered species so long as the
property could be modified in a way that would support introduction and
subsequent conservation of the species on it. This is not a reasonable
construction of § 1532(5)(A)(2).
We are not presented with a case in which land, though unoccupied by
an endangered species, provides elements to neighboring or downstream
property that are essential to the survival of the species in the areas that it
19 BLACK’S LAW DICTIONARY (10th ed. 2014) (emphasis in original).
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does occupy. For example, the Ninth Circuit concluded that certain areas,
though unoccupied, were “essential” to an endangered species (the Santa Ana
sucker, a small fish) because the designated areas were “the primary sources
of high quality coarse sediment for the downstream occupied portions of the
Santa Ana River,” and that “coarse sediment was essential to the sucker
because [it] provided a spawning ground as well as a feeding ground from
which the sucker obtained algae, insects, and detritus.” 20 In the present case,
Unit 1 does not support, in any way, the existence of the dusky gopher frog or
its habitat. Our analysis therefore concerns only whether the property is
“essential for the conservation of the species” as an area that might be capable
of occupation by the dusky gopher frog if the area were physically altered.
The majority opinion cites the Ninth Circuit’s decision regarding the
Santa Ana sucker as support for the majority opinion’s assertion that “[t]here
is no habitability requirement in the text of the ESA or the implementing
regulations. The statute requires the Service to designate ‘essential’ areas,
without further defining ‘essential’ to mean ‘habitable.’” 21 I agree with that
statement—up to a point. Land can be “essential” even though uninhabitable
if it provides elements to the species’ habitat that are essential to sustain it, as
was the case regarding the Santa Ana sucker. The majority opinion says
instead that land can be designated as “critical habitat” even if it is not
habitable and does not play any role in sustaining the species. The Ninth
Circuit did not announce such a sweeping interpretation of the Endangered
Species Act. That court held only that land not occupied by the species could
20 Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 994 (9th Cir. 2015).
21 Ante at 19.
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constitute critical habitat because of the “essential” role it played in the
survival of species as the primary source of sediment necessary for the
spawning of the species. 22 The majority opinion has not cited any decision from
the Supreme Court or a Court of Appeals which has construed the Endangered
Species Act to allow designation of land that is unoccupied by the species,
cannot be occupied by the species unless the land is significantly altered, and
does not play any supporting role in sustaining habitat for the species.
The meaning of the word “essential” undoubtedly vests the Service with
significant discretion in determining if an area is “essential” to the
conservation of a species, but there are limits to a word’s meaning and hence
the Service’s discretion. The Service’s interpretation of “essential for the
conservation of the species” 23 in the present case goes beyond the boundaries
of what “essential” can reasonably be interpreted to mean. As the Supreme
Court has explained, “an agency’s interpretation of a statute is not entitled to
deference when it goes beyond the meaning that the statute can bear.” 24
In MCI Telecommunications Corp. v. AT&T Co., 23 U.S.C. § 203(a)
required long-distance communications common carriers to file tariffs with the
Federal Communications Commission (FCC). 25 The FCC was authorized under
23 U.S.C. § 203(b)(2) to “‘modify any requirement made by or under the
authority of this section either in particular instances or by general order
applicable to special circumstances or conditions.’” 26 In a rulemaking
22 Bear Valley, 790 F.3d at 994.
23 16 U.S.C. § 1532(5)(A)(ii).
24 MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994) (citing Pittston Coal
Grp. v. Sebben, 488 U.S. 105, 113 (1988)).
25 Id. at 220.
26 Id. at 224 (quoting 47 U.S.C. § 203(b)(2)).
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proceeding, the FCC made rate tariff filings optional for all non-dominant long-
distance carriers. 27 In subsequent proceedings, AT&T challenged the FCC’s
statutory authority to do so, and the FCC took the position that its authority
was derived from the “modify any requirement” provision in § 203(b). The
Supreme Court determined that “modify” “connotes moderate change,” 28 and
examined extensively other provisions of the Communications Act. 29 The
Supreme Court concluded that eliminating tariff rate filings for a segment of
the industry was “much too extensive to be considered a ‘modification.’” 30 The
Court observed, “[w]hat we have here, in reality, is a fundamental revision of
the statute, changing it from a scheme of rate regulation in long-distance
common-carrier communications to a scheme of rate regulation only where
effective competition does not exist. That may be a good idea, but it was not
the idea Congress enacted into law in 1934.” 31 The same can be said of the
Service’s, and the majority opinion’s, construction of the Endangered Species
Act in the present case. It may be a good idea to permit the Service to designate
any land as “critical habitat” if it is theoretically possible to transform land
that is uninhabitable into an area that could become habitat. But that is not
what Congress did.
The District of Columbia Circuit Court held in Southwestern Bell Corp.
v. FCC that an agency’s interpretation of a statute is not entitled to deference
when that interpretation “‘goes beyond the meaning that the statute can
27 Id. at 220.
28 Id. at 228.
29 Id. at 229-31.
30 Id. at 231.
31 Id. at 231-32.
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bear.’” 32 That court was fully cognizant of Chevron’s 33 teaching 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.’” 34 In Southwestern Bell, the FCC contended that
because the term “schedules” was not defined in the Federal Communications
Act, the FCC could permit carriers to file ranges of rates rather than specific
rates. 35 The District of Columbia Circuit disagreed, concluding that “[s]ection
203(a) . . . lays out what kind of filing the statute requires: ‘schedules showing
all charges.’ This language connotes a specific list of discernable rates; it does
not admit the concept of ranges.” 36
The majority opinion says that MCI Telecommunications Corp. is
distinguishable because in that case, the agency’s interpretation of “modify”
“flatly contradicted the definition provided by ‘virtually every dictionary [the
Court] was aware of.’” 37 The majority opinion then observes that one definition
of “essential” is “of the utmost importance; basic and necessary,” and concludes
that this definition “describes well a close system of ephemeral ponds, per the
scientific consensus that the Service relied upon.” 38 This highlights the
opinion’s misdirected focus and frames the question that is at the heart of this
case. That question is whether the Endangered Species Act permits the
3243 F.3d 1515, 1521 (D.C. Cir. 1995).
33Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
34 Sw. Bell Corp., 43 F.3d at 1521 (quoting Nat’l R.R. Passenger Corp. v. Boston &
Maine Corp., 503 U.S. 407, 417 (1992)).
35 Id.
36 Id.; see also id. (“Section 203(a) requires the filing of ‘schedules showing all charges,’
which clearly suggests something more definite and specific than rate ranges.”).
37 Ante at 19 n.15 (alteration in original) (quoting MCI Telecomms. Corp. v. AT&T Co.,
512 U.S. 218, 229 (1994)).
38 Id.
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Service to designate land as critical habitat when the land has only one
physical or biological feature that would be necessary to support a population
of the endangered species but lacks the other primary physical or biological
features that are also necessary for habitat. It is undisputed that ephemeral
ponds alone cannot support a dusky gopher frog population. All likewise agree
that Unit 1 lacks the other two primary constituent elements, which are
upland forested nonbreeding habitat dominated by longleaf pine maintained
by fires, and upland habitat between breeding and nonbreeding habitat with
specific characteristics including an open canopy, native herbaceous species,
and subservice structures. Unit 1 is not “essential [i.e., of the utmost
importance; basic and necessary] for the conservation of the species” 39 because
it cannot serve as habitat unless the forests in the areas upland from the ponds
are destroyed and the requisite vegetation (including a new forest) is planted
and maintained. Because there is no reasonable probability that Unit 1 will
be altered in this way, it is not “essential.”
The Service’s implicit construction of the meaning of “essential for the
conservation of the species” is not entitled to deference because it exceeds the
boundaries of the latitude given to an agency in construing a statute to which
Chevron deference is applicable. The term “essential” cannot reasonably be
construed to encompass land that is not in fact “essential for the conservation
of the species.” When the only possible basis for designating an area as “critical
habitat” is its potential use as actual habitat, an area cannot be “essential for
the conservation of the species” if it is uninhabitable by the species and there
is no reasonable probability that it will become habitable by the species. Even
39 16 U.S.C. § 1532(5)(A)(ii).
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if scientists agree that an area could be modified to sustain a species, there
must be some basis for concluding that it is likely that the area will be so
modified. Otherwise, the area could not and will not be used for conservation
of the species and therefore cannot be “essential” to the conservation of the
species.
With great respect, at other junctures, the majority opinion misdirects
the inquiry as to the proper meaning of “essential for the conservation of the
species.” The opinion examines an irrelevant question in arguing that there is
no “temporal requirement” in the text of the Endangered Species Act. For
example, the opinion states that the Service is not required “to know when a
protected species will be conserved as a result of a designation.” 40 Similarly,
the majority opinion observes that the Act does not “set[] a deadline for
achieving this ultimate conservation goal.” 41 I agree. The Act does not require
the Service to speculate whether or when an endangered species will no longer
require conservation efforts at the time the Service designates “critical
habitat.” But in designating an area as “critical habitat,” the question is not
when the species will be conserved, which is the question that the majority
opinion raises and then dismisses. Nor is it a question of when the area will
be essential. Rather, the pertinent inquiry is whether the area is essential for
conservation. An area cannot be essential for use as habitat if it is
uninhabitable and there is no reasonable probability that it could actually be
used for conservation.
40 Ante at 21.
41 Id; see also id. (“And the Landowners do not explain why it is impossible to make
an essentiality determination without determining when (or whether) the conservation goal
will be achieved.”).
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The majority opinion fails to discern the meaningful boundary that the
term “essential” places on the Service in designating “critical habitat.” The
opinion fails to appreciate the distinction between land that, because of its
physical and biological features, cannot be used for conservation without
significant alteration and land that is actually habitable but not occupied by
the species. 42 The majority opinion posits that “[the Landowners’ logic] would
also seem to allow landowners whose land is immediately habitable to block a
critical-habitat designation merely by declaring that they will not—now or
ever—permit the reintroduction of the species to their land.” 43 The fact that a
landowner is unwilling to permit the reintroduction of a species does not have
a bearing on whether the physical and biological features of the land make it
suitable as habitat. Land that is habitable but unoccupied by the species may
be “essential” if the areas that a species currently occupies are inadequate for
its survival. Even if the landowner asserts that it will not allow introduction
of the species, the Service may designate the land as “critical habitat” because
it is in fact habitable, and the consultation and permitting provisions of the Act
may be used to attempt to persuade the owner to not destroy the features that
make the area habitable and to allow the species to be reintroduced. However,
when land would have to be significantly modified to either serve as habitat or
to serve as a source of something necessary to another area that is habitat
(such as the sediment in the Santa Ana sucker case), then whether there is a
probability that the land will be so modified must be part of the equation of
whether the area is “essential.” Unless the land is modified, it is useless to the
42 See ante at 22.
43 Id.
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species and therefore cannot be “essential.” Under such circumstances, the
Service cannot designate land as “critical habitat” unless there is an objective
basis for concluding that modifications will occur because otherwise, the land
cannot play a role in the species’ survival.
The majority opinion rejects the logical limits of the word “essential” in
concluding that requiring either actual use for conservation or a reasonable
probability of use for conservation to satisfy the “essential for the conservation
of the species” requirement in the statute would be reliant on the subjective
intentions of landowners. 44 Whether there is a reasonable probability that
land will be modified so that it is suitable as habitat is an objective inquiry
that would consider many factors. Those factors might well (and in most
instances probably would) include economic considerations such as the values
of various uses of the land. The inquiry would be whether a reasonable
landowner would be likely to undertake the necessary modifications. In some
cases, a landowner might have entered into an agreement to modify land so
that it may be used as habitat, and in such a case, there would be nothing
“subjective” in concluding that it is reasonably probable that the land will
actually be used as habitat and therefore “essential” for the conservation of the
species.
The majority opinion’s interpretation of the Endangered Species Act is
illogical, inconsistent, and depends entirely on adding words to the Act that
are not there. Those words are “a critical feature.” 45 On one hand, the majority
44 See ante at 22 n.17; 24 n.18.
45 Ante at 24-25 (“Here, the Service confirmed through peer review and two rounds of
notice and comment a scientific consensus as to the presence and rarity of a critical (and
difficult to reproduce) feature—the ephemeral ponds—which justified its finding that Unit 1
was essential for the conservation of the dusky gopher frog.”).
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opinion says that “we find it hard to see how the Service would be able to
satisfactorily explain” the designation of an empty field as habitat.” 46 Yet, in
the next paragraph, the opinion says that because the designation in this case
“was based on the scientific expertise of the agency’s biologists and outside
gopher frog specialists,” this court is required to affirm the “critical habitat”
designation. 47 It is easily conceivable that “the best scientific data available” 48
would lead scientists to conclude that an empty field that is not currently
habitable could be altered to become habitat for an endangered species.
Apparently recognizing that unless cabined in some way, the majority
opinion’s holding would give the Service unfettered discretion to designate land
as “critical habitat” so long as scientists agree that uninhabitable land can be
transformed into habitat, the majority opinion asserts that at least one
“physical or biological feature[] . . . essential to the conservation of the
species” 49 must be present to permit the Service to declare land that is
uninhabitable by the species to be “critical habitat.” It must be emphasized
that this is the linchpin to the majority’s holding. When the only potential use
of an area for conservation is use as habitat, the Service cannot designate
uninhabitable land as “critical habitat,” the majority opinion concedes, even if
scientists agree that the land could be altered to become habitat. 50 But, the
46 Ante at 24.
47 Ante at 25.
48 16 U.S.C. § 1533(b)(2).
49 Id. § 1532(5)(A)(i).
50 Ante at 25 n.19 (“Even assuming that [the best scientific data available would lead
scientists to conclude that an empty field that is not currently habitable could be altered to
become habitat for an endangered species], it does not follow that scientists or the Service
would or could then reasonably call an empty field essential for the conservation of a
species.”).
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opinion says, if, as in the present case, there is at least one physical or
biological feature essential to the conservation of the species (also denominated
by the Service as a primary constituent element, as explained in footnote 12 of
the majority opinion), the presence of one, and only one, of three indispensable
physical or biological features required for habitat is sufficient to allow the
Service to designate uninhabitable land as “critical habitat.” The opinion says:
Here, the Service confirmed through peer review and two rounds
of notice and comment a scientific consensus as to the presence and
rarity of a critical (and difficult to reproduce) feature—the
ephemeral ponds—which justified its finding that Unit 1 was
essential for the conservation of the dusky gopher frog. 51
This re-writes the Endangered Species Act. It permits the Service to
designate an area as “critical habitat” if it has “a critical feature” even though
the area is uninhabitable and does not play a supporting role to an area that
is habitat. Neither the words “a critical feature” nor such a concept appear in
the Act. The touchstone chosen by Congress was “essential.” The existence of
a single, even if rare, physical characteristic does not render an area “essential”
when the area cannot support the species because of the lack of other necessary
physical characteristics.
The majority opinion’s reasoning also suffers from internal
inconsistency. The opinion asserts that, unlike land that is occupied by the
species, there is no requirement under the Endangered Species Act that
unoccupied land “must contain all of the relevant [physical or biological
51 Ante at 24-25.
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features]” 52 that are “essential to the conservation of the species” 53 before the
Secretary may designate it as critical habitat. 54 This clearly implies, if not
states, that the Secretary can designate unoccupied land as critical habitat
even if the land has no primary constituent physical or biological element (to
use the Service’s vernacular) essential to the conservation of the species. 55 If
land can be “essential for the conservation of the species” even when it has no
physical or biological features essential to the conservation of the species, then
what, exactly, is it about the land that permits the Service to find it “essential”?
The majority opinion does not answer this question. Instead, a few pages after
making the assertion that unoccupied land can be designated even when it has
no features essential to the conservation of the species, the opinion rejects this
proposition. 56 The majority opinion says (in attempting to counter the
argument that its holding would permit the Service to designate an empty field
as critical habitat even though not habitable) that it would be arbitrary and
capricious for the Service to find an empty field “essential” if there were other
similar fields. 57 The opinion concludes that if land that is uninhabitable could
be modified to become habitat, the Service could not deem the land “essential”
if there were other parcels of land similar to it that could also be modified:
We fail to see how the Service would be able to similarly justify as
rational an essentiality finding as to arbitrarily chosen land. In
contrast, the dissent, similar to the Landowners, contends that
“[i]t is easily conceivable that ‘the best scientific data available’
52 Ante at 20 (alteration in original) (quoting Markle Interests, LLC v. U.S. Fish &
Wildlife Serv., 40 F. Supp. 3d 744, 761 (E.D. La. 2014)).
53 16 U.S.C. § 1532(5)(A)(ii).
54 See also ante at 20.
55 See also id. (“[T]he plain text of the ESA does not require Unit 1 to be habitable.”).
56 See ante at 25 n.19.
57 Id.
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would lead scientists to conclude that an empty field that is not
currently habitable could be altered to become habitat for an
endangered species.” Even assuming that to be true, it does not
follow that scientists or the Service would or could then reasonably
call an empty field essential for the conservation of a species. If
the field in question were no different than any other empty field,
what would make it essential? Presumably, if the field could be
modified into suitable habitat, so could any of the one hundred or
one thousand other similar fields. If the fields are fungible, it
would be arbitrary for the Service to label any single one
“essential” to the conservation of a species. It is only by
overlooking this point that the dissent can maintain that our
approval of the Service’s reading of “essential” will “mean[] that
virtually any part of the United States could be designated as
‘critical habitat’ for any given endangered species so long as the
property could be modified in a way that would support
introduction and subsequent conservation of the species on it.” 58
I have difficulty with this reasoning. There is undeniably a textual
difference in the Endangered Species Act between the sections dealing with an
area occupied by the species and an area unoccupied by that species. If
Congress did in fact intend to authorize the Service to designate unoccupied
land as “critical habitat” even if it had no “physical or biological features . . .
essential to the conservation of the species” but could be modified to become
habitat, then it would not seem to be arbitrary or capricious for the Service to
designate any particular parcel of land as critical habitat, even if there were
other similar lands. The intent of Congress would be that land can be
designated if the survival of the species depends on creating habitat for it. If
this were in fact the intent of Congress, it would not be reasonable to say that
because there is an abundance of land that could be modified to save the
58 Id. (citation omitted).
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species, none of it can be designated. But the majority opinion is unwilling to
construe the Act in such a manner, because, as the opinion explains, Congress
used the word “essential” as a meaningful limit on the authority of the Service
to designate “critical habitat.” The opinion reasons, “[i]f the fields [that could
be modified] are fungible, it would be arbitrary for the Service to label any
single one ‘essential’ to the conservation of the species.” 59 Acknowledging that
land lacking any features necessary for habitat cannot be “essential” to the
conservation of the species, the opinion finds it necessary to construct a
tortured interpretation of the Act to affirm what the Service has done in this
case. That interpretation is as follows: land with no physical or biological
features essential to the conservation of the species that is not occupied by the
species but could be modified to become habitable can be deemed “essential”
and designated as critical habitat, but only if there are virtually no other tracts
similar to it, or land that is uninhabitable by the species but that has at least
one physical or biological feature can be designated as critical habitat if the
land can be modified to create all the other physical or biological features
necessary to transform it into habitat for the species. I do not think that the
word “essential” can bear the weight that the majority opinion places upon it
in arriving at its interpretation of the Act.
The majority opinion strenuously denies that its holding allows the
Service to “designate any land as critical habitat whenever it contains a single
one of the ‘physical or biological features’ essential to the conservation of the
species at issue.” 60 But the opinion’s ensuing explanation illustrates that is
59 Id.
60 Ante at 25 n.20 (quoting 16 U.S.C. § 1532(5)(A)(i)).
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precisely the import of its holding: “if the ponds are essential, then Unit 1,
which contains the ponds, is essential for the conservation of the dusky gopher
frog.” 61 The Service itself found, based on scientific data, that the ponds are
only one of three “primary constituent elements” that are “essential to the
conservation of the species.” 62 The other two primary constituent elements are
not present on Unit 1 and would require substantial modification of Unit 1 to
create them. 63
The Service’s construction of the Endangered Species Act is not entitled
to any deference because it goes beyond what the meaning of “essential” can
encompass. The Service’s construction of the Act is impermissible, and the
Service exceeded its statutory authority.
III
The majority opinion quotes a Supreme Court decision, which
says: “[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.” 64 However, the panel’s majority opinion does not identify any
finding by the Service as being “this kind of scientific determination.” Instead,
the opinion appears to address the proper interpretation of “essential for the
conservation of the species,” as applied to the point of contention in this case,
as a question of law based on the words Congress chose.
61 Id.
62 See Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Dusty Gopher Frog, 77 Fed. Reg. 35,118, 35,131 (June 12, 2012).
63 Id. (acknowledging that Unit 1 contains only one of the primary constituent
elements necessary to sustain a dusky gopher frog population).
64 Ante at 13-14 (quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462
U.S. 87, 103 (1983)).
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The fact that scientific evidence was a part of the proceedings leading to
the Final Rule 65 does not mean that all determinations in the Final Rule are
subject to deference by a reviewing court. No one disputes that reputable
scientists made valid determinations in the administrative proceedings
undertaken by the Service. However, the scientific evidence and conclusions
have no bearing on the issue of statutory construction about which the parties
in this case disagree: Did Congress intend to permit the designation of land as
“critical habitat” when the land is not occupied by an endangered species and
would have to be substantially modified then periodically maintained in order
to be used as habitat, and when there is no indication that the land will in fact
be modified or maintained in such a manner?
IV
The phrase “essential for the conservation of the species” requires more
than a theoretical possibility that an area designated as “critical habitat” will
be transformed such that its physical characteristics are essential to the
conservation of the species. There is no evidence that it is probable that Unit
1 will be physically modified in the manner that the scientists uniformly agree
would be necessary to sustain a dusky gopher frog population. The conclusion
by the Service that Unit 1 is “essential for the conservation of the species” is
therefore not supported by substantial evidence, and the designation of Unit 1
as “critical habitat” should be vacated under the APA.
The Service recognized in the Final Rule that under the Endangered
Species Act and regulations implementing it, the Service is “required to
65See 16 U.S.C. § 1533(b)(2) (“The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) on the basis of the best scientific data
available . . . .”).
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identify the physical or biological features essential to the conservation of the
dusky gopher frog in areas occupied at the time of listing, focusing on the
features’ primary constituent elements.” 66 The Service explained that “[w]e
consider primary constituent elements to be the elements of physical or
biological features that, when laid out in the appropriate quantity and spatial
arrangement to provide for a species’ life-history processes, are essential to the
conservation of the species.” 67 The Service identified three primary constituent
elements, briefly summarized as ephemeral wetland habitat with an open
canopy (with certain specific characteristics), upland forested nonbreeding
habitat dominated by longleaf pine maintained by fires frequent enough to
support an open canopy and abundant herbaceous ground cover, and upland
habitat between breeding and nonbreeding habitat that is characterized by an
open canopy, abundant native herbaceous species, and a subsurface structure
that provides shelter for dusky gopher frogs during seasonal movements. 68
The other eleven units designated in the Final Rule had all three
constituent elements. 69 However, the Service found that Unit 1 has only one
of the three primary constituent elements detailed in the Final Rule—the
ephemeral ponds. 70 Isolated wetlands, like the ephemeral ponds that exist on
Unit 1, are necessary to sustain a population of the species as a breeding
ground. 71 But frogs do not spend most of their lives breeding in ponds, and the
existence of the ponds will not alone provide the necessary habitat. “Both
66 77 Fed. Reg. at 35,131.
67 Id.
68 Id.
69 Id.
70 Id.
71 Id.
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forested uplands and isolated wetlands . . . are needed to provide space for
individual and population growth and for normal behavior.” 72 The Service
found that dusky gopher frogs “spend most of their lives underground in
forested habitat consisting of fire-maintained, open-canopied, pine woodlands
historically dominated by longleaf pine.” 73 Unit 1 is covered with a closed-
canopy forest of loblolly pines.
The Service also identified the alterations and special management that
would be required within the areas designated as critical habit, including Unit
1, to sustain a dusky gopher frog population. 74 The Service found with regard
to Unit 1 that “[a]lthough the uplands associated with the ponds do not
currently contain the essential physical or biological features of critical
habitat, we believe them to be restorable with reasonable effort.” 75 This
finding is insufficient to sustain the conclusion that Unit 1 is “essential for the
conservation of the species” for at least two reasons. First, finding that the
uplands are “restorable” is not a finding that the areas will be “restored.”
72 Id. at 35,129.
73 Id.; see also id. at 35,130 (“Both adult and juvenile dusky gopher frogs spend most
of their lives underground in forested uplands.”)
74 Id. at 35,131-32. The Service concluded:
Special management considerations or protection are required within
critical habitat areas to address the threats identified above. Management
activities that could ameliorate these threats include (but are not limited
to): (1) Maintaining critical habitat areas as forested pine habitat (preferably
longleaf pine); (2) conducting forestry management using prescribed burning,
avoiding the use of beds when planting trees, and reducing planting densities
to create or maintain an open canopied forest with abundant herbaceous
ground cover; (3) maintaining forest underground structure such as gopher
tortoise burrows, small mammal burrows, and stump holes; (4) and protecting
ephemeral wetland breeding sites from chemical and physical changes to the
site that could occur by presence or construction of ditches or roads.
Id. at 35,132.
75 Id. at 35,135.
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Unless the uplands are restored, they cannot be and are not essential for the
conservation of the frog. Second, the Service does not explain who will expend
the “reasonable effort” necessary to restore the uplands. In sum, the
designation of Unit 1 as critical habitat is not supported by substantial
evidence because there is no evidence that Unit 1 will be modified in such a
way that it can serve as habitat for the frog.
In fact, the Service itself concluded that it is entirely speculative as to
whether Unit 1 will be transformed from its current use for commercial timber
operations into dusky gopher frog habitat by removing the loblolly pines and
replacing them with longleaf pines, and by the other activities necessary to
create frog habitat. The Service was required by the Endangered Species Act
to assess the economic impact of designating critical habitat. 76 The Service
recognized that as to Unit 1, the economic impact depended on the extent to
which it might be developed, 77 and accordingly, whether section 7 consultation
would be required because of a federal nexus. 78 Section 7 consultation would
provide at least some potential that the owners of the land would be required
to take measures to create habitat for the dusky gopher frog in order to obtain
federal permits that would allow development. But the Service specifically
found that “considerable uncertainty exists regarding the likelihood of a
Federal nexus for development activities” on Unit 1, 79 and that only the
“potential exists for the Service to recommend conservation measures if
consultation were to occur.” 80 This does not constitute substantial, or even any,
76 Id. at 35,140.
77 Id.
78 Id.
79 Id.
80 Id. (emphasis added).
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evidence that Unit 1 is now or will become suitable habitat for the dusky
gopher frog, which is the only basis on which the Service has ever posited that
Unit 1 is “essential for the conservation of the species.” 81 (As discussed above,
the Service has never contended that Unit 1 is essential because of support
that it provides to another area that is occupied by the frog.)
The Service described three different scenarios to assess the potential
economic impact of the Final Rule. 82 In the first scenario, “no conservation
measures are implemented for the species.” 83 The Service reasoned that
development on Unit 1 might avoid any federal nexus and therefore no
consultation would be required, and no conservation of the species would occur.
The Service therefore expressly recognized that Unit 1 may never play any role
in the “conservation of the species.”
In the Service’s second scenario, the Service assumes that development
is sought by the owners, 84 section 7 consultation occurs that results in
81 16 U.S.C. § 1532(5)(A)(ii).
82 77 Fed. Reg. at 35,140-41.
83 Id. at 35,140 (emphasis added). The Service explained:
Under scenario 1, development occurring in Unit 1 avoids impacts to
jurisdictional wetlands and as such, there is no Federal nexus (no Federal
permit is required) triggering section 7 consultation regarding dusky gopher
frog critical habitat. Absent consultation, no conservation measures are
implemented for the species, and critical habitat designation of Unit 1 does not
result in any incremental economic impact.
Id.
84 Id. at 35,140-41:
According to scenarios 2 and 3, the vast majority of the incremental
impacts would stem from the lost development value of land in Unit 1. Under
scenarios 2 and 3, less than one percent of the incremental impacts stem from
the administrative costs of future section 7 consultations. Under scenario 2,
the analysis assumes the proposed development of Unit 1 requires a Section
404 permit from the Corps due to the presence of jurisdictional wetlands. The
development would therefore be subject to section 7 consultation considering
critical habitat for the dusky gopher frog. This scenario further assumes that
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development on 40% of Unit 1, and the remaining 60% is managed as dusky
gopher frog habitat. 85 (The Service estimates that the landowners would suffer
a loss of $20.4 million due to the loss of the option to develop 60% of the area.) 86
This is the only scenario, in the entirety of the Final Rule, that explains how,
at least theoretically, Unit 1’s landscape would be altered so that it could be
used as dusky gopher frog habitat. But the Service made no findings that this
scenario was likely or probable.
Under Scenario 3, the Service assumes that the owners desire to develop
Unit 1, section 7 consultation occurs, but no development is permitted on Unit
1 by the Government “due to the importance of the unit in the conservation
and recovery of the species. 87 (The Service estimates that the loss of the option
to develop 100% of Unit 1 would result in a loss of $33.9 million to the
the Service works with the landowner to establish conservation areas for the
dusky gopher frog within the unit. The Service anticipates that approximately
40 percent of the unit may be developed and 60 percent is managed for dusky
gopher frog conservation and recovery. According to this scenario, present
value incremental impacts of critical habitat designation due to the lost option
for developing 60 percent of Unit 1 lands are $20.4 million. Total present value
incremental impacts of critical habitat designation across all units are
therefore $20.5 million ($1.93 million in annualized impacts), applying a 7
percent discount rate.
Scenario 3 again assumes that the proposed development of Unit 1
requires a Section 404 permit and therefore is subject to section 7 consultation.
This scenario further assumes that, due to the importance of the unit in the
conservation and recovery of the species, the Service recommends that no
development occur within the unit. According to this scenario, present value
impacts of the lost option for development in 100 percent of the unit are $33.9
million. Total present value incremental impacts of critical habitat
designation across all units are therefore $34.0 million ($3.21 million in
annualized impacts), applying a 7 percent discount rate.
85 See id.
86 Id. at 35,141.
87 Id.
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owners.) 88 Significantly, the Service does not posit that any of Unit 1 would
actually be used as dusky gopher frog habitat under Scenario 3, in spite of its
alleged “importance” to conservation. Undoubtedly, that is because if the
federal government would not permit the landowners to develop any part of
Unit 1, why would the owners undertake to modify Unit 1 so that it could be
used as frog habitat? The Government has no plans to pay for the creation of
habitat on Unit 1. Habitat will only be created, and therefore conservation will
only occur, if the owners decide to modify their property. The only evidence in
the record is that the owners do not plan to do so and there is no evidence that
the economic or other considerations would lead a reasonable landowner to
create frog habitat on Unit 1.
Scenario 3 shows, in the starkest of terms, why the Service’s position
that Unit 1 is “essential for the conservation of the species” is illogical on its
face. Even if the Government does not allow any development on Unit 1
because of the existence of the ephemeral ponds, the Government is aware that
Unit 1 cannot be used for the conservation of the dusky gopher frog because
someone or some entity would have to significantly modify Unit 1 to make it
suitable for frog habitat. Unsuitable habitat is not essential for the
conservation of the species.
* * *
I would vacate the Final Rule’s designation of Unit 1 as critical habitat,
and I therefore dissent.
88 Id.
68