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On February 13, 2017, the U.S. Court of Appeals for the Fifth Circuit denied Defendants’ Petition for Rehearing En Banc in the case titled Markle Interests, L.L.C., et al. v. U.S. Fish and Wildlife Service, et al. The Defendants, who are timber and commercial developers, requested that the Court rehear the June 30, 2016 panel majority opinion that upheld the District Court’s ruling that the Fish and Wildlife Service’s designation of 1,500 acres of private land in St. Tammany Parish as a critical-habitat for the Dusky Gopher Frog under the Endangered Species Act (“ESA”) was proper.  (Click here to view the article on the Fifth Circuit’s June 30th Opinion).  

In an 8-6 vote, the Fifth Circuit denied Defendants’ Petition for Rehearing. The majority provided no written opinion. However, Judge Edith Jones wrote a thirty page dissent that strongly disagrees with the Court’s June 30th ruling. Judge Jones rejects the Court’s ruling that it was proper to have private land be designated as a critical-habitat for the Dusky Gopher Frog under the ESA. Judge Jones states that the private tract of land in St. Tammany Parish “is neither occupied by nor suitable for occupation by nor connected in any way to the [Dusky Gopher Frog].” Judge Jones goes on to state that this designation costs Louisiana landowners $34 million in future development opportunities, and if properly construed, the ESA “does not authorize this wholly unprecedented regulatory action.”  

The Defendants likely next step is to file a petition for writ of certiorari in hopes to have the United States Supreme Court hear their case.  

Please see the link below to view the full text of Judge Jones’ Dissent:
http://www.ca5.uscourts.gov/opinions/pub/14/14-31008-CV1.pdf

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