On June 13, 2016, the U.S. Court of Appeals for the Fifth Circuit, in a 2-1 decision, held that the U.S. Fish and Wildlife Service (FWS) had properly included approximately 1,500 acres in Louisiana as designated critical habitat for the endangered dusky gopher frog (Rana sevosa), even though the frog did not inhabit the land and significant alterations would be required before the land could even be considered habitable. Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452 (5th Cir. 2016). (For a further discussion of the panel decision, see our prior E-Alert.)
On February 13, 2017, by a vote of eight to six, the Fifth Circuit denied a petition for rehearing en banc. In response to the denial, Judge Edith Jones, a Ronald Reagan appointee, drafted a 32-page dissent that was joined by the other five Circuit Judges that voted in favor of rehearing. In addition to walking through the legal and policy arguments in favor of rehearing, the dissent made a number of not-so-subtle jabs at the other members of the court. For example, the dissent begins with the following:
“The protagonist in this Endangered Species Act (ESA) case–the dusky gopher frog–is rumored to ‘play dead,’ ‘cover its eyes,’ ‘peak [sic] at you[,] and then pretend to be dead again.’ . . . The panel majority regrettably followed the same strategy in judicial review–play dead, cover their eyes, peek, and play dead again. Even more regrettably, the court refused to rehear this decision en banc.”
With a petition for writ of certiorari likely on the horizon, one can only guess as to whether such a dissent increases or decreases the likelihood of Supreme Court review.