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In 2010, under the Endangered Species Act (“ESA”), the United States Fish and Wildlife Service (“the FWS”) designated 6,477 acres in Mississippi and Louisiana as “critical habitat” for the Rana sevosa or the dusky gopher frog.  This frog has historically lived in nine counties or parishes across Louisiana, Mississippi, and Alabama.  Since its 2001 designation as an endangered species, an estimate of 100 adult frogs are known to only exist in Harrison County, Mississippi.  The gopher frog spends most of its time living underground, but will migrate to short-lived, ephemeral ponds to breed.  After breeding, the frog will return to its underground habitat, along with its offspring.  According to the FWS, the greatest threat to the gopher frog population is the low number of adult frogs and human-induced environmental stressors, such commercial development.  Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 2016 WL 3568093, at *1-2 (5th Cir. June 30, 2016).

Furthermore, in an attempt to return the gopher frog population to Louisiana, the 2010 designation by the FWS included 1,544 acres of private land in St. Tammany Parish (“Unit 1”).  A group of private landowners (“the Landowners”), who owned all of Unit 1, brought a lawsuit in 2013 for declaratory judgment and injunctive relief against the FWS, its director, the United States Department of the Interior, and the Secretary of the Interior.  The Landowners claimed that their property value decreased due to the designation and that they had future plans to develop Unit 1 for residential and commercial development and timber operations.  However, these plans could not go forward due to the FWS’s designation of Unit 1 as a critical habitat.  Id.

On August 22, 2014, District Judge Martin L.C. Feldman of the United States District Court for the Eastern District of Louisiana granted the FWS’s Motion for Summary Judgment and held that the FWS properly applied the Endangered Species Act to private lands in St. Tammany Parish.  Subsequently, on June 30, 2016, in a 2-1 decision, the United States Court of Appeals for the Fifth Circuit affirmed Judge Feldman’s ruling, upholding the FWS’s designation of Unit 1 as a “critical habitat” under the ESA.  Id.

Writing for the Fifth Circuit, Circuit Judge Stephen A. Higginson first ruled that the Landowners had standing to bring a lawsuit against the FWS under Article III of the United States Constitution.  The Court held that the Landowners’ assertion of lost property value is a “concrete and particularized injury that supports standing.”  Id. at *4; U.S.C.A. Const. Art 3, § 2, cl 1.  Next, the Court rejected the Landowners’ four challenges to the FWS’s designation of Unit 1 as a critical habitat for the dusky gopher frog:

  • First, the Court rejected the Landowners’ argument that the FWS’s designation violated the ESA. The FWS brought forth sufficient evidence to prove that designating occupied habitat in Harrison County, Mississippi alone was inadequate to ensure the conservation of the gopher frog and Unit 1 was essential for the conservation of the frog due to its landscape and natural, ephemeral ponds.  Thus, the Court ruled that the designation of Unit 1 as a critical habitat was not arbitrary and capricious, and it did not violate the ESA.  Markle Interests, 2016 WL 3568093, at *10-12.
  • Second, the Court addressed the issue of the FWS’s refusal to exclude Unit 1 from the critical habitat designation. The ESA mandates that the FWS “take into consideration the economic impact…of specifying any particular area as critical habitat.”  16 U.S.C. § 1534(a).  After this is done, the FWS may exclude any area from the critical habitat if it “determines that the benefits of such exclusion outweigh the benefits of specifying such areas as part of the critical habitat.” Id. at *12-13.  Here, the Landowners argued that Unit 1 has a potential loss of $33.9 million in commercial development over a period of twenty years, and that the benefits of excluding Unit 1 “clearly outweigh the benefits of including it in the designation.”  Id. at *12.  However, the Court stated that after the FWS fulfilled its statutory obligation to consider the economic impacts, a decision to not exclude an area is discretionary.  Under the Administrative Procedure Act (“APA”), such decisions “committed to agency discretion by law” are not reviewable in federal court under the APA.  Id. at *13.
  • Third, the Court held that the ESA did not exceed Congress’s powers to regulate commerce under the Commerce Clause. The Court held that the designation of Unit 1 as a critical habitat is an intrastate activity and an essential part of a larger regulation of economic activity.  This regulatory scheme could be undercut unless the intrastate activity is regulated. Id. at *14.
  • Lastly, the Court rejected the Landowners’ claim that the FWS violated the National Environmental Policy Act by failing to prepare an environmental impact statement before designating Unit 1 as a critical habitat. The Court held that the FWS did not need a NEPA impact statement because the designation did not effect changes to the Landowners’ physical environment.  “The ESA statutory scheme makes clear that [the FWS] has no authority to force private landowners to maintain or improve the habitat existing on their land.” Id. at *18.

Therefore, after rejecting all of the Landowners’ arguments, the Fifth Circuit ruled in favor of the U.S. Fish and Wildlife Service and held that the Landowners’ privately owned land can be designated as a critical habitat for the dusky gopher frog.  This opinion suggests that the federal government, through the FWS, may prevent the industrial and commercial development of a private citizen’s land, even though the endangered species does not presently occupy the critical habitat.

A copy of the Fifth Circuit’s opinion can be found here.

For further information, contact Collin Melancon at or James Lapeze at

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