# Petition for Writ of Certiorari — Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 45 (2018) (No. 17-71) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2018 ## Text MUL 11 20i7 . . THE CLERK WS. J Jn the Supreme Court of the Anited States 17-21 FILED WEYERHAEUSER COMPANY, Petitioner, Vv. UNITED STATES FISH AND WILDLIFE SERVICE, ET AL., Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit PETITION FOR A WRIT OF CERTIORARI RICHARD C. STANLEY TIMOTHY S. BISHOP Stanley, Reuter, Ross, Counsel of Record Thornton & Alford, LLC CHAD M. CLAMAGE 909 Poydras Street, Suite Mayer Brown LLP 2500 71 South Wacker Drive New Orleans, LA 70112 Chicago, Illinois 60606 (504) 523-1580 (312) 782-0600 tbishop@mayerbrown.com JAMES R. JOHNSTON ZACHARY R. HIATT Weyerhaeuser Company 220 Occidental Ave. S. Seattle, Washington 98104 (206) 539-4361 Counsel for Petitioner QUESTIONS PRESENTED Congress enacted the Endangered Species Act to conserve “ecosystems upon which endangered species ** * depend.” 16 U.S.C. § 1531(b). To that end, the Act requires the Secretary of the Interior to “designate any habitat of such species which is then considered to be critical habitat.” Id. § 1533(a)(3)(A). “Critical habitat” may include areas “occupied by the species,” as well as “areas outside the geographical area occupied by the species” that are determined to be “essential for the conservation of the species.” Jd. § 1532(5)(A). The Fish and Wildlife Service designated as critical habitat of the endangered dusky gopher frog a 1500- acre tract of private land that concededly contains no dusky gopher frogs and cannot provide habitat for them absent a radical change in land use because it lacks features necessary for their survival. The Service concluded that this designation could cost $34 million in lost development value of the tract. But it found that this cost is not disproportionate to “biological” benefits of designation and so refused to exclude the tract from designation under 16 U.S.C. § 1533(b)(2). A divided Fifth Circuit panel upheld the designa- tion. The questions presented, which six judges of the court of appeals and fifteen States urged warrant further review because of their great importance, are: 1. Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation. 2. Whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review. li PARTIES TO THE PROCEEDINGS BELOW In addition to petitioner Weyerhaeuser Company, plaintiffs-appellants below, respondents here, are Markle Interests, LLC, P&F Lumber Company 2000, LLC, and PF Monroe Properties, LLC, which are filing a separate petition for certiorari. Defendants-appellees below, the federal agency respondents here, are the United States Fish and Wildlife Service; and, by operation of Rule 35.3, Greg Sheehan, in his official capacity as Acting Director of the United States Fish and Wildlife Service, and Ryan Zinke, in his official capacity as Secretary of the Department of Interior. Intervenor-defendants-appellees below, and respondents here, are the Center for Biological Diversity and Gulf Restoration Network. CORPORATE DISCLOSURE STATEMENT Petitioner Weyerhaeuser Company is a publicly held company. It has no parent corporation and no publicly held company owns 10% or more of its stock. il TABLE OF CONTENTS Questions Presented ......... iceman Paihia tacenesion lalate i Parties to the Proceedings ae Sat Tet Rafe UE eee. il Corporate Disclosure Statement ............................... il a a aisinde cirn ania Gapinds salianeteens 1 lease 1 Statutes and iedattnes ME 2 Ae AEE GATOR AR 1 ace caabineiviiipannnnebsiniaious 2 A. The Statutory And Regulatory Scheme...........5 B. The ESA’s Critical Habitat Provisions ............ 6 C. FWS’s Designation Of Unoccupied Critical Habitat For The Dusky Gopher | BRENT ag RE a SE oN APES Be ai Cou eiraniet 9 D. The District Court Distdien AS PR ASE BSS LMR SE SE 12 E. The Fifth Circuit’s Divided Panel Decision And En Banc Vote .................0..0...... 13 Reasons For Granting The Petition.......................... 14 I. The Fifth Circuit Misinterpreted The ESA’s Critical Habitat Provisions. .........................0000.008 14 A. The ESA Prohibits Designation Of Unit EEE CE 15 B. The Fifth Circuit’s Ruling Conflicts With Decisions Of The Ninth Circuit. ........... 24 Il. The Meaning Of “Critical Habitat” Is Of Immense And Immediate Public EE te FS RES BES a 26 A. The Panel’s Ruling Inflicts Significant Costs On Private Landowners, With No Benefits To Endangered Species.................... 26 iV B. FWS’s New Rule Formalizing Its Authority To Designate Unoccupied Non-Habitat Reinforces The Need For I a ncapsomseebesunensecses 30 Ill. The Panel’s Erroneous Holding That FWS’s Decision Not To Exclude Unit 1 From Designation Is Judicially Unreviewable “Play[s] Havoc With Administrative Law’ ......... 31 ERT ae oS Rl Date! PT EI RE cee peer 33 Appendix A — Opinion of the court of appeals Cee sd ces ocaliinues la Appendix B — Opinion of the district court a Js inaespdiseseennie 78a Appendix C — Order denying rehearing ee cc nisuesescotuden 123a Appendix D — Statutes Involved ......................... 163a Appendix E — Regulations Involved.................... 166a Vv TABLE OF AUTHORITIES Page(s) Cases All. for Wild Rockies v. Lyder, 728 F.Supp.2d 1126 (D. Mont. 2010)................... 25 Am. Forest Res. Council v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 2013), affd, 601 F. App’x 1 (D.C. Cir. 2015)....0..ccccccccececeeeeseee. 25 Arizona Cattle Growers’ Ass'n v. Salazar, 606 F.3d 1160 (9th Cir. 2010)........0..0000.000000c. 4, 24 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, a ccevisvenesersonmaaed 6, 20 Bennett v. Spear, ES BD WII avin cn atiaionesuceosenés 5, 6, 14, 32, 33 Cape Hatteras Access Pres. All. vy. U.S. Dep't of Interior, 344 F. Supp.2d 108 (D.D.C. 2004) 2.000... 00 cn... 25 Chevron, U.S.A., Inc. v. N.R.D.C., ee nincranasemeansiial 18 Clark v. Martinez, i i is ceawsspeoduseny 21 Ctr. for Biological Diversity v. Kelly, 93 F.Supp.3d 1193 (D. Idaho 2015)..................... 25 vl Esquivel-Quintana v. Sessions, Ao Fy OMCs eA 18 Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Services, 616 F.3d GBS (th Cir. BOIO).................cccccccceseesses 24 Mach Mining, LLC v. EEOC, oe se Rare cask RE AT: 32 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., Se ee i hic pnsttvtevinstcnncbancaharees EERE © 32, 33 Nat'l Ass’n of Home Builders v. Babbitt, ft fe fg heat RR T 22 Nat'l Ass'n of Home Builders v. Defenders of Wildlife, Ee Wee NO Ce Piireesectevcinsessminceeraicanenee 6, 18 Nat Fed. of Indep. Business v. Sebelius, BE CF i crticsintsiscvesicesnkiasddimauanmaaiaee 22 Rapanos v. United States, Oe SF as Fe i ctnientersxnsessscescseiacabienmiel 4, 22, 23 Solid Waste Agency of N. Cook Cty. v. Army Corps, 8s | Rene ner, 5, 21, 22, 23 Tenn. Valley Auth. v. Hill, FF a, Be i iccrcivcpeevsccenestctassincdhaaeeee 6, 7 Util. Air Regulatory Grp. v. EPA, et Bi ef np ee mes 20 Vl Statutes, Rules, and Regulations I I noc ccccecsccscececsescocecsensee 18 16 U.S.C. Si SE a ae 1 § 1531(c)(2) eens. Tae 23 a 7,17 Nee cmcmavesereeoms 17 a 3,8 § 1532(5)(C) ............... oe 7, 19 a Es 20 ES a a cssietepeseneocsoudad 20 once sccceeveesesersesecss aero A a See 7 ao scuseoccmmnes 3, 15 Se 11, 32 This finding is in- sufficient to sustain the conclusion that Unit 1 is “es- sential 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.” 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 re- store the uplands. In sum, the designation of Unit 1 as critical habitat is not supported by substantial ev- idence 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 en- tirely speculative as to whether Unit 1 will be trans- formed from its current use for commercial timber operations into dusky gopher frog habitat by remov- ing the loblolly pines and replacing them with long- leaf pines, and by the other activities necessary to create frog habitat. The Service was required by the Endangered Species Act to assess the economic im- pact of designating critical habitat. The Service recognized that as to Unit 1, the economic impact depended on the extent to which it might be devel- 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. 1 Id. at 35,135. 76 Id. at 35,140. J4a oped,”’ and accordingly, whether section 7 consulta- tion would be required because of a federal nexus.” Section 7 consultation would provide at least some potential that the owners of the land would be re- quired to take measures to create habitat for the dusky gopher frog in order to obtain federal permits that would allow development. But the Service spe- cifically found that “considerable uncertainty exists regarding the likelihood of a Federal nexus for devel- opment activities” on Unit 1,79 and that only the “po- tential exists for the Service to recommend conserva- tion measures if consultation were to occur.”™ This does not constitute substantial, or even any, 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 “es- sential for the conservation of the species.”*! (As dis- cussed 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.*2 In the first scenario, “no conservation measures a> implemented for the species.”** The 7 Id. 78 Id. 19 Id. 8 /d. (emphasis added). 8! 16 U.S.C. § 1S32(S Ail). 82 77 Fed. Reg. at 35,140-41. 83 Jd. at 35,140 (emphasis added). The Service explained: Under scenario |, development occurring in Unit | avoids impacts to jurisdictional wet- lands and as such, there is no Federal nexus (no Federal permit is re- quired) triggering section 7 consultation regarding dusky gopher frog crit- 75a Service reasoned that development on Unit 1 might avoid any federal nexus and therefore no consulta- tion 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 as- sumes that development is sought by the owners,” section 7 consultation occurs that results in devel- ical habitat. Absent consultation, no conservation measures are imple- mented for the species, and critical habitat designation of Unit | does not result in any incremental economic impact. /d. 84 Jd. 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 |. Under scenarios 2 and 3, less than one percent of the in- cremental impacts stem from the administrative costs of future section 7 consultations. Under scenario 2, the analysis assumes the proposed de- velopment of Unit | 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 the Service works with the landowner to establish conservation areas for the dusky gopher frog within the unit. The Service anticipates that approximately 40 per- cent of the unit may be developed and 60 percent is managed for dusky gopher frog conservation and recovery. According to this scenario, pre- sent value incremental impacts of critical habitat designation due to the lost option for developing 60 percent of Unit | 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 | requires a Section 404 permit and therefore is subject to section 7 consultation. This scenario further as- sumes that, due to the importance of the unit in the conservation and re- covery 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. 76a opment on 40% of Unit 1, and the remaining 60% is managed as dusky gopher frog habitat.*5 (The Ser- vice 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.)** This is the only scenario, in the entirety of the Final Rule, that explains how, at least theoretically, Unit 1’s landscape would be al- tered 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 consulta- tion 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.*’ (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 owners.)** 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 govern- ment 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 habi- tat? The Government has no plans to pay for the cre- ation of habitat on Unit 1. Habitat will only be creat- ed, and therefore conservation will only occur, if the owners decide to modify their property. The only evi- dence in the record is that the owners do not plan to — = 8 See id. 86 Jd at 35,141. 87 Id. 88 Id. lla do so and there is no evidence that the economic or other considerations would lead a reasonable land- owner 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 develop- ment 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. x**** 1 would vacate the Final Rule’s designation of Unit 1 as critical habitat, and I therefore dissent. 78a APPENDIX B UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARKLE INTERESTS, LLC v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. Civil Action Nos. 13-234, 13—362, 13-413. [Aug. 22, 2014] ORDER AND REASONS MARTIN L. C. FELDMAN, District Judge: These consolidated proceedings ask whether a federal government agency’s inclusion of a privately- owned tree farm in its final designation of critical habitat for the dusky gopher frog, pursuant to the Endangered Species Act, was arbitrary or capricious. Before the Court are 11 motions, including nine cross-motions for summary judgment: (1) Weyerhaeuser Company's motion for summary judgment, (2) the federal defend- ants’ cross-motion, and (3) the intervenor de- fendants’ cross-motion; (4) Markle Interests LLC’s motion for summary judgment, (5) the 79a federal defendants’ cross-motion, and (6) the intervenor defendants’ cross-motion; (7) the Poitevent Landowners’ motion for summary judgment; (8) the federal defendants’ cross- motion, and (9) the intervenor defendants’ cross-motion. Additionally before the Court are two mo- tions to strike extra-record evidence submit- ted by Poitevent Landowners, one filed by federal defendants and one by intervenor de- fendants. For the reasons the follow, the fed- eral and intervenor defendants’ motions to strike extra-record evidence are GRANTED; the plaintiffs’ motions for summary judgment are GRANTED in part (insofar as they have standing) and DENIED in part; and, finally, the defendants’ motions are DENIED in part (insofar as defendants challenge plaintiffs’ standing) and GRANTED in part. Background Plaintiffs in these consolidated cases— landowners and a lessee of a tree farm in Louisi- ana—challenge the United States Fish and Wildlife Service's (FWS) final rule designating 1,544 acres of a privately-owned timber farm in St. Tammany Par- ish as critical habitat that is essential for the conser- vation of the dusky gopher frog, an endangered spe- cies. Only about 100 adult dusky gopher frogs remain in the wild. The frog, listed as endangered in 2001, is now located only in Mississippi; it does not presently occupy the plaintiffs’ tree farm and was last sighted there in the 1960s. Nevertheless, FWS included cer- tain acreage of the plaintiffs’ tree farm in its rule nua designating critical habitat for the frog, finding this land essential to conserving the dusky gopher frog. A determination plaintiffs insist is arbitrary. To better understand the factual and procedural background of this challenge to federal agency action, it is helpful first to consider the context of the administrative framework germane to the present controversy. The Endangered Species Act Due to the alarming trend toward species extinc- tion “as a consequence of economic growth and devel- opment untempered by adequate concern and con- servation,” Congress enacted the Endangered Spe- cies Act, 16 U.S.C. § 1531, et. seq., (ESA) to conserve endangered and threatened species and the ecosys- tems on which they depend. 16 U.S.C. § 1531(a), (b). By defining “conservation” as “the use of all methods and procedures which are necessary to bring any en- dangered or threatened species to the point at which the measures provided [by the ESA] are no longer necessary,” (16 U.S.C. § 1532(3)), the Act illuminates that its objective is not only “to enable listed species . . . to survive, but [also] to recover from their endan- gered or threatened status.” Sierra Club v. FWS, 245 F.3d 434, 438 (5th Cir. 2001); Tenn. Valley Authority v. Hill, 437 U.S. 153, 184 (1978) (“The plain intent of Congress in enacting this statute was to halt and re- verse the trend toward species extinction, whatever the cost.”). The U.S. Secretary of the Department of Interior is charged with administering the Act; the Secretary delegates authority to the U.S. Fish and Wildlife Service.' To achieve the Act’s survival and recovery ! Technically, administration responsibilities are divided be- tween the Department of Interior and the Department of Com- sla objectives, FWS is obligated to utilize enumerated criteria to promulgate regulations that list species that are “threatened” or “endangered”. 16 U.S.C. § 1533 (stating, in mandatory terms, the require- ment to determine threatened or endangered species status: “The Secretary shall determine. . ..”). A spe- cies is listed as “endangered” if it is “in danger of ex- tinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). Listing triggers statuto- ry protections for the species. See, e.g., 16 U.S.C. § 1538(a) (setting forth prohibited acts, such as “tak- ing” (§ 1532(19)) listed animals). Listing also triggers FWS’s statutory duty to des- ignate critical habitat; such designation being anoth- er tool in FWS’s arsenal to accomplish the Act’s spe- cies survival and recovery objectives. See 16 U.S.C. § 1533(a)(3)(A) (“The Secretary, by regulation prom- ulgated in accordance with subsection (b) of this sec- tion and to the maximum extent prudent and deter- minable ... (i) shall concurrently with making a [listing] determination . . . designate any habitat of such species. . ..”). Like its listing duty, FWS’s habi- tat designation duty is mandatory;? the designation merce. 16 U.S.C. § 1533(a)(2). The Secretaries of these agencies then delegated their authority to the FWS or National Marine Fisheries Service. 2 Sierra Club v. FWS, 245 F.3d 434, 438 (5th Cir. 2001) (“Once a species has been listed as endangered or threatened, 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 ‘determina- ble.”). It is incumbent on the Secretary—“to the maximum ex- tent prudent and determinable”—to designate critical habitat concurrently with listing a species as endangered, 16 U.S.C. § 1533(a)(3)(A)(i), but the Secretary’s failure to make a concur- rent designation, for whatever reason, does not preclude later 80a designating critical habitat for the frog, finding this land essential to conserving the dusky gopher frog. A determination plaintiffs insist is arbitrary. To better understand the factual and procedural background of this challenge to federal agency action, it is helpful first to consider the context of the administrative framework germane to the present controversy. The Endangered Species Act Due to the alarming trend toward species extinc- tion “as a consequence of economic growth and devel- opment untempered by adequate concern and con- servation,” Congress enacted the Endangered Spe- cies Act, 16 U.S.C. § 1531, et. seq., (ESA) to conserve endangered and threatened species and the ecosys- tems on which they depend. 16 U.S.C. § 1531(a), (b). By defining “conservation” as “the use of all methods and procedures which are necessary to bring any en- dangered or threatened species to the point at which the measures provided [by the ESA] are no longer necessary,” (16 U.S.C. § 1532(3)), the Act illuminates that its objective is not only “to enable listed species . .. to survive, but [also] to recover from their endan- gered or threatened status.” Sierra Club v. FWS, 245 F.3d 434, 438 (5th Cir. 2001); Tenn. Valley Authority v. Hill, 437 U.S. 153, 184 (1978) (“The plain intent of Congress in enacting this statute was to halt and re- verse the trend toward species extinction, whatever the cost.”). The U.S. Secretary of the Department of Interior is charged with administering the Act; the Secretary delegates authority to the U.S. Fish and Wildlife Service.! To achieve the Act’s survival and recovery ! Technically, administration responsibilities are divided be- tween the Department of Interior and the Department of Com- Sla objectives, FWS is obligated to utilize enumerated criteria to promulgate regulations that list species that are “threatened” or “endangered”. 16 U.S.C. § 1533 (stating, in mandatory terms, the require- ment to determine threatened or endangered species status: “The Secretary shall determine. . ..”). A spe- cies is listed as “endangered” if it is “in danger of ex- tinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). Listing triggers statuto- ry protections for the species. See, e.g., 16 U.S.C. § 1538(a) (setting forth prohibited acts, such as “tak- ing” (§ 1532(19)) listed animals). Listing also triggers FWS’s statutory duty to des- ignate critical habitat; such designation being anoth- er tool in FWS’s arsenal to accomplish the Act’s spe- cies survival and recovery objectives. See 16 U.S.C. § 1533(a)(3)(A) (“The Secretary, by regulation prom- ulgated in accordance with subsection (b) of this sec- tion and to the maximum extent prudent and deter- minable ... (i) shall concurrently with making a flisting] determination . . . designate any habitat of such species. . ..”). Like its listing duty, FWS’s habi- tat designation duty is mandatory;? the designation merce. 16 U.S.C. § 1533(a)(2). The Secretaries of these agencies then delegated their authority to the FWS or National Marine Fisheries Service. 2 Sierra Club v. FWS, 245 F.3d 434, 438 (5th Cir. 2001) (“Once a species has been listed as endangered or threatened, 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 ‘determina- ble.”’). It is incumbent on the Secretary—‘“to the maximum ex- tent prudent and determinable’—to designate critical habitat concurrently with listing a species as endangered. 16 U.S.C. § 1533(a)(3)(A)i), but the Secretary's failure to make a concur- rent designation, for whatever reason, does not preclude later 82a must be based on “the best scientific data available . . . after taking into consideration the economic impact, the impact on national security, and any other rele- vant impact.” 16 U.S.C. § 1533(b)(2). After weighing the impacts of designation, FWS may, however, ex- clude an area from critical habitat unless it “deter- mines .. . that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” Id. Notably, in defining “critical habitat” for an en- dangered species, the ESA differentiates between habitat that is “occupied” and habitat that is “unoc- cupied” at the time of listing: (5A) The term “critical habitat” for a threatened or endangered species means— (i) the specific areas within the geograph- ical 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 (1) essential to the conservation of the species and (II) which may require special manage- ment considerations or protection; and (ii) specific areas outside the geograph- ical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determi- designation. See 16 U.S.C. § 1532(a)(3)(B) (“Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established ... .”); see also 16 U.S.C. § 1533(b)(6)(C)(ii) (if “critical habitat of [listed] species is not . . . determinable [at the time of listing], the Secretary . . . may extend the one-year period specified in paragraph (A) by not more than one addi- tional year... .”) and 50 C.F.R. § 424.17(b)(2). 83a nation by the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. § 1532(5)(A). Thus, in so differentiating, by its express terms, the Act contemplates the designa- tion of both “occupied” and “unoccupied” critical hab- itat. FWS may designate as critical occupied habitat that contains certain physical or biological features called “primary constituent elements”, or “PCEs”.* 50 C.F.R. § 424.12(b). FWS may designate as critical unoccupied habitat so long as it determines it is “es- sential 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.” 50 C.F.R. § 424.12(e). Once designated, critical habitat is protected from harm if and when the ESA’s federal agency consultation mechanism is triggered: federal agen- cies must consult with FWS on any actions “author- ized, funded, or carried out by” the agency to ensure that their actions do “not result in the destruction or adverse modification of habitat .. .” 16 U.S.C. § 1536(a)(2).4 If FWS or the consulting federal agency 3 PCEs are those “physical and 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.” 77 Fed. Reg. 35118, 35131 (2012). 4 Destruction or modification of critical habitat is defined, by regulation, as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species.” 50 C.F.R. § 402.02. However, the U.S. Court of Appeal for the Fifth Circuit struck down, as fa- cially invalid, this regulatory definition of the destruc- tion/adverse modification standard. Sierra Club, 245 F.3d at 442-43 (observing that the ESA distinguishes between “conser- vation” and “survival” and “[rjequiring consultation only where 84a determines that a contemplated action “may affect . . . critical habitat”, the agency and FWS must engage in “formal” consultation. 50 C.F.R. § 402.14(a). If FWS finds that a contemplated agency action, such as the issuance of a permit, is likely to adversely modify critical habitat, FWS must suggest reasona- ble and prudent alternatives that the consulting agency could take to avoid adverse modification. 50 C.F.R. § 402.14(h)(3). “Reasonable and prudent al- ternatives” must be “economically and technological- ly feasible.” 50 C.F.R. § 402.02. Thus, if a private party’s action has no federal nexus (if it is not au- thorized, funded, or carried out by a federal agency), no affirmative obligations are triggered by the criti- cal habitat designation. In other words, absent a fed- eral nexus, FWS cannot compel a private landowner to make changes to restore his designated property into optimal habitat. The Dusky Gopher Frog The dusky gopher frog (Rana Sevosa) is a darkly- colored, moderately-sized frog with warts covering its back and dusky spots on its belly. [t is a terrestrial amphibian endemic to the longleaf pine ecosystem. The frogs “spend most of their lives underground in forested habitat consisting of fire-maintained, open- canopied, pine woodlands historically dominated by longleaf pine.” 77 Fed. Reg. at 35129-35131. They an action affects the value of critical habitat to both the recov- ery and survival of a species imposes a higher threshold than the statutory language permits.”) (emphasis in original). 5 “Underground retreats include gopher tortoise burrows, small mammal burrows, stump holes, and root mounds of fallen trees.” 77 Fed. Reg. at 35130. 85a travel to small, isolated ephemeral ponds® to breed, then return to their subterranean forested environ- ment, followed by their offspring that survive to metamorphose into frogs. Amphibians like the dusky gopher frog need to maintain moist skin for respira- tion and osmoregulation. To this end, the areas con- necting their wetland and terrestrial habitats must be protected to provide cover and moisture during migration.’ The risk for its extinction is high. Only about 100 adult dusky gopher frogs are left in the wild. They are located in three sites in Harrison and Jackson Counties in southern Mississippi; only one of these sites regularly shows reproduction. The frog is pri- marily threatened by habitat loss and disease. Due to its small numbers, it is also highly susceptible to genetic isolation, inbreeding, and random demo- graphic or human related events. Listing and Proposed Critical Habitat Designation In December 2001, in response to litigation com- menced by the Center for Biological Diversity, FWS listed the dusky gopher frog® as an endangered spe- cies. FWS determined that the frog was endangered 6 Ephemeral pvads are isolated wetlands that dry periodically and flood seasonally; because they are short-lived, predatory fish are lacking. 7 “Optimal habitat is created when management includes fre- quent fires, which support a diverse ground cover of herbaceous plants, both in the uplands and in the breeding ponds.” Id. at 35129. Frequent fires are also critical to maintaining the prey base for the carnivorous juvenile and adult dusky gopher frogs. Id. at 35130. 8 At that time, and until 2012, the dusky gopher frog was known as the Mississippi gopher frog. 86a due to its low population size combined with ongoing threats such as habitat destruction, degradation re- sulting from urbanization, and associated vulnerabil- ity to environmental stressors such as drought. No critical habitat was designated at that time. Nearly six years later, litigation again prompted FWS to ac- tion: in resolving, through settlement, the litigation to compel designation, in 2011 FWS published a pro- posed rule to designate critical habitat; the proposed rule included unoccupied and occupied areas in Mis- sissippi only.® An independent peer review of the proposed rule followed. Every peer reviewer'® concluded that the amount of habitat already proposed, which included occupied and unoccupied areas in Mississippi, was insufficient for conservation of the species. Several peer reviewers suggested that FWS consider other locations within the frog’s historical range. One peer reviewer in particular suggested the area of dispute here, identified as Unit 1 by the final rule: although the dusky gopher frog does not presently occupy this land and had not been seen on the land since the 1960s, Unit 1 contained at least two historical breed- ing sites for the frog. Based on the comments, FWS 9 FWS determined that the frog’s optimal] habitat includes three primary constituent elements (PCEs): (1) small, isolated, ephemeral ponds for breeding; (2) upland pine forested habitat that has an open canopy; and (3) upland connectivity habitat. FWS determined that this habitat contains the “physical and biological features necessary to accommodate breeding, growth, and other normal behaviors of the [frog] and to promote genetic flow within the species.” © These six individuals had scientific expertise and were famil- iar with the species and the geographical region, as well as con- servation biology principles. 87a re-analyzed the “current and historic data for the species, including data from Alabama and Louisi- ana.” FWS identified additional critical habitat in Mississippi and Louisiana,'!' and included those are- as within the revised proposed rule published for comment on September 27, 2011. Before finalizing the rule, FWS considered the potential economic impacts of the designation. The final economic analysis (EA) quantified impacts that may occur in the 20 years following designation, ana- lyzing such economic impacts of designating Unit 1 based on the following three hypothetical scenarios: (1) development occurring in Unit 1 would avoid im- pacts to jurisdictional wetlands and, thus, would not trigger ESA Section 7 consultation requirements; (2) development occurring in Unit 1 would require a permit from the Army Corps of Engineers due to po- tential impacts to jurisdictional wetlands, which would trigger ESA Section 7 consultation between the Corps and FWS, and FWS would work with landowners to keep 40% of the unit for development and 60% managed for the frog’s conservation (“pre- sent value incremental impacts of critical habitat designation due to the lost option for developing 60 percent of Unit 1 lands are $20.4 million”); and (3) development occurring would require a federal per- mit, triggering ESA Section 7 consultation, and FWS determines that no development can occur in the unit (“present value impacts of the lost option for de- velopment in 100 percent of the unit are $33.9 mil- '! FWS was not able to identify critical habitat in Alabama. 88a lion”).'2 Because the EA “did not identify any dispro- portionate costs that are likely to result from the des- ignation[,] the Secretary [did] not exercisfe] his dis- cretion to exclude any areas from this designation of critical habitat for the dusky gopher frog based on economic impacts.” The 6/12/12 Final Rule Designating Critical Habitat On June 12, 2012 FWS issued its final rule des- ignating critical habitat for the dusky gopher frog. 77 Fed. Reg. 25118 (June 12, 2012). The habitat desig- nation covers 6,477 acres in two states, Mississippi and Louisiana, including approximately 1,544 acres of forested land in St. Tammany Parish, Louisiana, known as Critical Habitat Unit 1. FWS determined that the ephemeral wetlands in Unit 1 contain all of the physical or biological features that make up PCE 1. Unit 1 was included in the designation notwith- standing the fact that the dusky gopher frog has not occupied the lands for decades. Procedural History of Consolidated Litigation The plaintiffs in these consolidated proceedings own all of the forested property identified in the Rule as Unit 1. P&F Lumber Company (2000), L.L.C., St. Tammany Land Co., L.L.C., and PF Monroe Proper- ties, L.L.C. (the Poittevent Landowners), as well as Markle Interests, L.L.C. own undivided interests in 95% of the 1,544 acres of land comprising Unit 1; and the remaining 5% (approximately 152 acres) of the land in Unit 1 is owned by Weyerhaeuser Company, ‘2 In preparing the final version of the EA, FWS considered Unit 1I’s landowners’ comments, as well as the landowners’ submissions regarding the value of Unit | land. 89a which also holds a timber lease on the balance of the 1,544 acres comprising Unit 1; that lease is up in 2043. Seeking to invalidate the Rule insofar as it des- ignates Unit 1 as critical habitat for the dusky go- pher frog, Markle Interests filed suit and, shortly thereafter, Poitevent Landowners and later Weyer- haeuser Company followed suit.'* Each of the plain- tiffs allege that the Rule designating Unit 1 exceeds constitutional authority under the Commerce Clause, U.S. Const. art. 1 § 8, cl. 3, and that it vio- lates the Endangered Species Act, 16 U.S.C. § 1531 et. seq.,'4 the Administrative Procedure Act, 5 U.S.C. § 551 et. seq., and the National Environmental Policy Act, 42 U.S.C. § 4321 et. seq.; they seek identical de- claratory and injunctive relief. Named as defendants are the U.S. Fish & Wildlife Service; Daniel M. Ashe, in his official capacity as Director of U.S. Fish & Wildlife Service; the U.S. Department of the Interior; and Sally Jewell, in her official capacity as Secretary of the Department of the Interior. On June 25, 2013 the Center for Biological Diversity and Gulf Restora- tion Network were granted leave to intervene, as of right, as defendants. On August 19, 2013 the federal defendants lodged the certified administrative record with the Court.'5 Federal and intervenor defendants now request that the Court strike certain extra- 13 [In May 2013 the Court granted motions to consolidated these three lawsuits. 4 Plaintiffs invoke the ESA's citizen suit provision, 16 U.S.C. § 1540(g). ‘Ss This Court imposed an October 2013 deadline for supple- menting, or challenging, the administrative record; no party re- quested to supplement the record. 90a record evidence submitted by the Poitevent Land- owners. And plaintiffs, federal defendants, and intervenor defendants now seek summary judgment. I. Standards of Review A. Summary Judgment Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Lib- erty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court emphasizes that the mere argued ex- istence of a factual dispute does not defeat an other- wise properly supported motion. See id. Therefore, “filf the evidence is merely colorable, or is not signifi- cantly probative,” summary judgment is appropriate. Id. at 249—50 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the mov- ing party. See Donaghey v. Ocean Drilling & Explo- ration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claims. Id. Hearsay evidence and unsworn documents that can- not be presented in a form that would be admissible 9la in evidence at trial do not qualify as competent op- posing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2). Finally, in evaluating the sum- mary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255. B. Administrative Procedure Act Where plaintiffs challenge the Secretary's admin- istration of the ESA—in particular, a final rule des- ignating critical habitat—the Administrative Proce- dure Act is the appropriate vehicle for judicial re- view. See Bennett v. Spear, 520 U.S. 154, 174-75 (1997). The APA entitles any “person adversely affected or aggrieved by agency action” to judicial review of “agency action made reviewable by statute and final agency action for which there is no other adequate remedy[.]” 5 U.S.C. § 702 (right of review); 5 U.S.C. § 704 (actions reviewable). A reviewing court must “set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of dis- cretion, or otherwise not in accordance with the law for] contrary to constitutional right, power, privilege, or immunity[.]” 5 U.S.C. § 706(2). This standard is “highly deferential” and the agency’s decision is af- forded a strong presumption of validity. Hayward v. U.S. Dep't of Labor, 536 F.3d 376, 379 (5th Cir. 2008); Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000) (Courts must be partic- ularly deferential to agency determinations made within the scope of the agency’s expertise). The re- viewing court must decide whether the agency acted within the scope of its authority, “whether the deci- sion was based on a consideration of the relevant fac- 92a tors and whether there has been a clear error of judgment.” See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, (1971) (“inquiry into the facts is to be searching and careful, [but] the ulti- mate standard of review is a narrow one”), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). The Court may not “reweigh the evidence or substitute its judgment for that of the administrative fact finder.” Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). “Nevertheless, the agency must examine the relevant data and articulate a satisfactory expla- nation for its action including a ‘rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). II. Scope of the Record With the exception of the Poitevent Landowners, all parties agree that, in assessing the lawfulness of FWS’s designation Rule, this Court is confined to re- viewing only the administrative record assembled by FWS. Indeed, “[rjeview of agency action under § 706(2)‘s ‘arbitrary or capricious’ standard is limited to the record before the agency at the time of its deci- sion.” See Luminant Generation Co., LLC v. EPA, 675 F.3d 917, 925 (5th Cir. 2012). Notwithstanding this core administrative law principle, the Poitevent Landowners insist that the Court may consider cer- tain extra-record materials. The Court disagrees; be- cause the Poitevent Landowners have failed to demonstrate unusual circumstances justifying a de- parture from the record, the Court finds that grant- ing the federal and intervenor defendants’ motions to strike extra-record evidence is warranted for the fol- lowing reasons. 93a In reviewing agency action, the APA instructs a reviewing court to “review the whole record or those parts of it cited by a party[.|” 5 U.S.C. § 706. “[T]he general presumption [is] that review fof agency ac- tion] 1s limited to the record compiled by the agency.” Medina County Environmental Action Ass’n v. Sur- face Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010); Goonsuwan v. Ashcroft, 252 F.3d 383, 391 n.15 (5th Cir. 2001) (citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743—44 (1985)) (“It is a bedrock principle of judicial review that a court reviewing an agency decision should not go outside of the adminis- trative record.”). Mindful that the Court’s task in re- viewing agency action is not one of fact-finding but, rather, to determine whether or not the administra- tive record supports agency action, “the focal point for judicial review should be the administrative rec- ord already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). That is an immensely cramped standard of review for courts. In support of their motion for summary judgment the Poitevent Landowners submit the following ex- tra-record evidence: (1) Declaration of Edward B. Poitevent signed on December 9, 2013; (2) Wall Street Journal newspaper article dated March 11, 2013, entitled “Fishing for Wildlife Lawsuits”; (3) Washington Times newspaper article dated February 8, 2013, entitled “Vitter: Endangered Species Act’s hidden costs”; (4) Poitevent’s 60-day notice of intent to sue letter dated October 19, 2012.'6 The federal ‘6 The Poitevent Landowners advance a litany of arguments urging the Court to consider the proffered evidence: (1) judicial review under the ESA's citizen suit provision and under the Commerce Clause is not limited to the administrative record; 94a and intervenor defendants move to strike these ma- terials, pursuant to Rule 12(f) of the Federal Rules of Civil Procedure; they invoke the administrative rec- ord review principle that limits the scope of judicial review of agency action to the record compiled by the agency. The Court is unpersuaded to depart from the strict record review presumption. First, the Poitevent Landowners had ample opportunity to request per- mission to supplement the administrative record; the deadline to do so expired October 7, 2013. They simp- ly did not do so.'? Second, the Poitevent Landowners fall short of demonstrating “unusual circumstances justifying a departure” from the rule that judicial re- view is limited to the administrative record. See Me- dina County, 602 F.3d at 706. The Fifth Circuit in- structs that supplementing the administrative record may be permitted when: (1) the agency deliberately or negligently ex- cluded documents that may have been ad- verse to its decision, .. . (2) the district court needed to supplement the record with “background information” in (2) Rule 56 permits submission of such evidence; (3) the con- tested evidence is in fact part of the administrative record or otherwise the Court may take judicial notice of such evidence; (4) exceptions to APA record review principles apply to warrant the Court’s review of this extra-record evidence; or (5) the FWS’ trespass on their lands require judicial review of the proffered evidence. 17 In fact, the Poitevent Landowners have never requested per- mission to submit the materials they submit with their sum- mary judgment papers; they simply respond to the defendants’ motions to strike. 95a order to determine whether the agency con- sidered all of the relevant factors, or (3) the agency failed to explain administra- tive action so as to frustrate judicial review. Id. None of these factors are implicated here. Accord- ingly, the Court must confine the scope of its review to the administrative record compiled by the agency and lodged with the Court. The federal and intervenor defendants’ motions to strike the extra- record, post-decisional materials are granted.!* Ill. Standing The Court turns to consider the threshold issue of standing. To resolve this issue, the Court must be satisfied that the plaintiffs have standing to chal- lenge the Rule designating their land as critical hab- itat. The Court finds that they do. “Article III of the Constitution limits federal courts’ jurisdiction to certain ‘Cases’ and ‘Controver- sies.” Clapper v. Amnesty Intl USA,—— U.S. 133 S. Ct. 1138, 1146 (2013). “One element of the case-or-controversy requirement” commands that a litigant must have standing to invoke the power of a federal court. See id. (citation omitted); see also Na- tional Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011). The plaintiffs bear the burden of establishing standing under Article III. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); Miss. State Democratic Party v. Barbour, 529 F.3d 538, 545 (5th Cir. 2008). ‘8 The administrative record review principle is not applicable to the standing assessment; the Court will consider Mr. Poitevent’s Declaration for the purposes of assessing the Poitevent Landowners’ standing. 96a The doctrine of standing requires that the Court satisfy itself that “the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdic- tion.” See Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009); see also Doe v. Beaumont Inde- pendent School Dist., 240 F.3d 462, 466 (5th Cir. 2001) (citing Warth v. Seldin, 422 U.S. 490, 498 (1975)). “Standing to sue must be proven, not merely asserted, in order to provide a concrete case or con- troversy and to confine the courts’ rulings within our proper judicial sphere.” Doe v. Tangipahoa Parish School Bd., 494 F.3d 494, 499 (5th Cir. 2007). The plaintiffs must demonstrate the “irreducible constitutional minimum of standing”, which is in- formed by three elements: (1) that they personally suffered some actual or threatened “injury in fact” (2) that is “fairly traceable” to the challenged action of the defendants; (3) that likely “would be redressed” by a favorable decision in Court. See Lujan v. De- fenders of Wildlife, 504 U.S. 555, 560-61 (1992).'9 The federal and intervenor defendants challenge the plaintiffs’ standing to contest the Secretary's desig- nation of their land as critical habitat; in particular, the defendants contend that the plaintiffs have failed to establish an actual or imminent injury.” The Court disagrees. ‘9 The actual injury requirement ensures that issues will be re- solved “not in the rarified atmosphere of a debating society, but in a concrete factual context.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). 20 The defendants do not challenge whether the injury is fairly traceable to their critical habitat designation; nor do they chal- 97a “Injury in fact [includes] economic injury, [as well as] injuries to aesthetics and well-being.” See Sabine River Auth. v. U.S. Dept. of Interior, 951 F.2d 669, 674 (5th Cir. 1992) (quoting Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 640 (5th Cir. 1983)). No- tably, when the plaintiff is an object of the govern- ment action at issue, “there is ordinarily little ques- tion that the action” has caused him injury. Lujan, 504 U.S. at 561-62. In fact, when the plaintiff chal- lenging agency action is a regulated party or an or- ganization representing regulated parties, courts have found that the standing inquiry is “self- evident.” See South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882, 895—96 (D.C. Cir. 2006) (an association of oil refineries had standing to chal- lenge an EPA regulation establishing air pollution standards because it was “inconceivable” that the regulation “would fail to affect . . . even a single” member of the association); see also Am. Petroleum Institute v. Johnson, 541 F. Supp. 2d 165, 176 (D.D.C. 2008) (“Regulatory influences on a firm’s business decisions may confer standing when, as here, they give rise to cognizable economic injuries or even a ‘sufficient likelihood’ of such injuries.”) (citing Clinton v. City of New York, 524 U.S. 417, 432-33 (1998) and Sabre, Inc. v. Dept. of Transp., 429 F.3d 1113, 1119 (D.C. Cir. 2005) (firm established stand- ing to challenge regulation where it was “reasonably certain that [the firm’s] business decisions [would] be affected” by the regulation)). This is so because regu- lated parties are generally able to demonstrate that they suffer some economic harm or other coercive ef- lenge whether the injury is likely to be redressed by a favorable ruling. 98a fect by virtue of direct regulation of their activities or property. These actual injuries are present here. When the Rule became final, the plaintiffs (each of whom are identically factually situated as Unit 1 landowners) became regulated parties who are subject to regula- tory burdens flowing from federal substantive law, the ESA. The plaintiffs’ sworn declarations are suffi- cient to establish constitutional standing.2! Now that their land is an object of agency action, plaintiffs submit that they are economically harmed in that the value of their land has decreased as a result of the agency designation; their business decisions rela- tive to their land are negatively impacted.2? Plain- tiffs have a personal stake in this controversy and have identified a concrete injury that is actual, not hypothetical. As a consequence of the Rule’s designa- tion of Unit 1 as critical habitat, the plaintiffs’ pur- suit of any development potential for the land clearly has been impacted by the agency action. Defendants’ attack on standing grounds seems utterly frivolous. The defendants downplay these economic harms and ——— 2! At summary judgment, the plaintiff cannot rely on simply “mere allegations,” but must “set forth’ by affidavit or other ev- idence ‘specific facts.” Lujan, 504 US. at 561, 112 S. Ct. 2130 (quoting Fed. R. Civ. P. 56(e)). 22 Weyerhaeuser submits that the land it leases and owns has been devalued; the “critical habitat designation . . . has imme- diately devalued the land within Unit 1 for commercial purpos- es by bringing increased .. . regulatory scrutiny under the En- dangered Species Act, thereby making it more difficult to sell, exchange, or develop such lands.” Markle and the Poitevent Landowners likewise attribute to the Rule “negative economic impact[s}” and “a drastic reduction in value fof the land]’; they submit that the designation “limits the usability and saleability of the property” to their detriment. 99a regulatory burdens as speculative,”5> but the Court finds that the plaintiffs have demonstrated actual, concrete injuries. See The Cape Hatteras Access Preservation Alliance v. U.S. Dep’t of Interior, 344 F. Supp. 2d 108, 117-18 (D.D.C. 2004) (business associ- ation that owned land within critical habitat desig- nated for watering piping plover had standing to challenge designation due to its economic and recrea- tional harms). IV. Constitutional Challenge The plaintiffs contend that federal regulation of Unit 1 under the ESA constitutes an unconstitution- al exercise of congressional authority under the Commerce Clause. The defendants counter that the ESA is consistently upheld as a constitutional exer- cise of the Commerce Clause power and that 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 23 Defendants regard Weyerhaeuser’s long-term timber lease as precluding this Court from finding a concrete injury, arguing that the land is essentially “locked up” for many years. But Weyerhaeuser’s submission undermines the defendants’ posi- tion. Putting aside that Weyerhaeuser in fact owns part of the land in addition to leasing the remainder, “Weyerhaeuser . . periodically evaluate[s] its land portfolio to identify properties that have greater value if placed in non-timber uses|; it] rou- tinely leases or sub-leases its forest lands for oil, gas and wind energy development|; and it] frequently renegotiate[s] long- term timber leases as conditions change.” Moreover, defend- ants’ charge of speculative injury is further undermined by the administrative record and the Rule itself, which acknowledges that, due to the presence of wetlands on Unit 1 (indeed, the rea- son underlying its designation), development of this land is likely to trigger the consultation process. 100a Clause. The Court agrees; the plaintiffs’ constitu- tional claim is foreclosed by binding precedent.24 Article |, §8 of the Constitution delegates to Congress the power “[tlo make all laws which shall be necessary and proper for carrying into execution” its authority to “regulate commerce .. . among the several states.” Supreme Court cases have identified three general categories of regulation in which Con- gress is authorized to engage under its commerce power: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce and persons or things in interstate commerce; and (3) ac- tivities that substantially affect interstate commerce. See Gonzales v. Raich, 545 U.S. 1, 16—17 (2005) (summarizing the evolution of the commerce clause power). The ESA, whose provisions and applications fall under the category of activities that substantially affect interstate commerce, has consistently been upheld as a constitutional exercise of congressional authority under the Commerce Clause. Six Circuits, including the Fifth Circuit, have rejected post-Lopez 24 On a separate constitutional note, the plaintiffs do not allege in their complaint that the Rule constitutes an unconstitutional taking under the Fifth Amendment. But the Poitevent Land- owners argue in their papers that the critical habitat designa- tion is an unlawful “extortionate demand” that constitutes “grand theft real estate.” Assuming this is an attempt to assert a Fifth Amendment takings claim, the defendants point out that a takings claim must be brought in the Court of Federal Claims. To be sure, this Court would lack jurisdiction over any properly asserted takings claim under the circumstances. See Chichakli v. Szubin, 546 F.3d 315, 317 (5th Cir. 2008) (vacating district court’s judgment as it related to takings claim and ob- serving that “Tucker Act grants Court of Federal Claims exclu- sive jurisdiction over takings claims against the United States that seek monetary damages in excess of $10,000"). 10la Commerce Clause challenges to applications of the ESA. See San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163 (9th Cir. 2011); Alabama- Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007); Wyoming v. U.S. Dep't of Inte- rior, 442 F.3d 1262 (10th Cir. 2006); GDF Realty In- vestments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003); Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000). Plaintiffs mistakenly rely on an earlier Supreme Court decision. Invoking United States v. Lopez, 514 U.S. 549, 558-59 (1995), the plaintiffs argue that, because the ESA is an exercise of Congress’s commerce power, actions under the ESA are “therefore limited to the regulation of channels of interstate commerce, things in interstate commerce, or economic activities that substantially affect interstate commerce.” Put plain- ly, they insist that there is no frog on their Louisiana land and the Rule exceeds the commerce power. The Court is tempted to agree, but for the state of the law. By focusing on their individual circumstance, plaintiffs misapprehend Lopez, which dealt with a challenge to an underlying statute, not a challenge to an individual application of a valid statutory scheme. Rejecting a similar argument, the Supreme Court re- iterated in Gonzales that “|w]here the class of activi- ties 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.” 545 U.S. at 23 (quoting Perez v. United States, 402 U.S. 146, 154 (1971)) (citations and internal quotation marks omit- ted). As odd as the Court views the agency action, this Court is also without power. Congress would have to act. 102a The Fifth Circuit has observed that the ESA is a constitutionally valid statutory scheme, whose “es- sential purpose,” according to Congress, “is ‘to pro- tect the ecosystems upon which we and other species depend.” GDF, 326 F.3d at 640 (citation omitted). Courts including the Fifth Circuit endorse the propo- sition that, in the aggregate, the extinction of a spe- cies and the resulting decline in biodiversity will have a predictable and significant effect on interstate commerce. See, e.g., National Ass’n of Home Builders v. Babbitt, 130 F.3d 1041, 1053-54 (D.C. Cir. 1997). Thus, “when ‘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.” Gonzales, 545 U.S. at 17 (quoting Lopez, 514 U.S. at 558). Aggregating the regulation of activities that adversely modify the frog’s critical habitat with the regulation of activities that affect other listed species’ habitat, the designa- tion of critical habitat by the Secretary is a constitu- tionally valid application of a constitutionally valid Commerce Clause regulatory scheme. See GDF, 326 F.3d at 640-41. V. Merits of the Rule The defendants urge the Court to sustain the Rule. The plaintiffs contend that the Secretary’s des- ignation of Unit 1 as critical habitat for the dusky gopher frog was arbitrary and in violation of the ESA and the National Environmental Policy Act; they urge the Court to set aside the Rule. They advance a litany of arguments challenging the merits of the Rule insofar as it designates Unit 1 as critical habi- tat for the dusky gopher frog: Unit 1 does not meet the statutory definition of “critical habitat”; FWS un- reasonably determined that Unit 1 is “essential” for 103a conservation of the frog; FWS arbitrarily failed to identify a recovery plan for the species; FWS failed to consider all economic impacts, and the method used in analyzing economic impacts was flawed; and FWS acted unreasonably (and violated NEPA) in failing to prepare an environmental impact statement. In ad- dition to these challenges, the Poitevent plaintiffs advance additional grounds for condemning the Rule: the dusky gopher frog is not on the endangered spe- cies list and FWS’s unlawiul trespass on its lands to view the ponds invalidates the Rule. The Court first addresses those arguments con- cerning whether the designation of Unit 1 satisfies the ESA’s requirements, then moves on to consider whether the FWS properly considered the economic impacts of the designation; and, finally, considers whether FWS acted unreasonably in failing to pre- pare an environmental impact statement. The Court has little doubt that what the gov- ernment has done is remarkably intrusive and has all the hallmarks of governmental insensitivity to private property. The troubling question is whether the law authorizes such action and whether the gov- ernment has acted within the law. Reluctantly, the Court answers yes to both questions. A. The Court first considers whether FWS’s desig- nation of Unit 1 satisfies the ESA’s substantive re- quirements. The federal defendants submit that FWS considered the best available science, including the input of six experts, and the importance of ephemeral ponds to the recovery of the frog, and thus reasonably determined that Unit 1 is essential for the conservation for the species. 104a 1. Did FWS reasonably determine that Unit 1 is “essential for the conservation of’ the dusky gopher frog? The ESA expressly provides that unoccupied ar- eas may be designated as “critical habitat” if FWS determines that those areas are “essential to the conservation of the _ species.” 16 #U.S.C. § 1532(5)(A)(ii). Congress did not define “essential” but, rather, delegated to the Secretary the authority to make that determination. Plaintiffs take issue with FWS’s failure to define “essential”, but they do not dispute that FWS explained its considerations for assessing what areas are essential. The Court finds that FWS’s determination seems reasonable and, therefore, entitled to Chevron deference. See Chev- ron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 n.9 (1984) (“[T]he judiciary is the final authority on is- sues of statutory construction and must reject ad- ministrative constructions which are contrary to clear congressional intent.”). The Court turns to con- sider the process that preceded FWS’s finding that Unit 1 is essential. FWS determined that Unit 1 is essential for the conservation of the dusky gopher frog. It came to this conclusion after its initial June 2010 proposed rule was criticized by all of the peer reviewers as being inadequate to ensure conservation of the frog. Given the alleged high risk of extinction due to localized threats, like droughts, disease, and pollution, FWS agreed that the proposed habitat was inadequate and began considering sites throughout the frog’s histori- cal range. FWS considered this specific criteria: (1) The historical distribution of the species; (2) presence of open-canopied, isolated wet- lands; (3) presence of open-canopied, upland 105a pine forest in sufficient quantity around each wetland location to allow for sufficient sur- vival and recruitment to maintain a breeding population over the long term; (4) open- canopied, forested connectivity habitat be- tween wetland and upland breeding sites; and (5) multiple isolated wetlands in upland habitat that would allow for the development of metapopulations. Using scientific information on sites throughout the frog’s range, FWS could not identify any loca- tions outside Mississippi that contained all of these elements or even all three PCEs. Determining that it is easier to restore terrestrial habitat than it is to re- store or create breeding ponds, FWS focused on iden- tifying more ponds in potential sites throughout the species’ range. FWS determined that the recovery of the frog “will not be possible without the establish- ment of additional breeding populations of the spe- cies. Isolated, ephemeral ponds that can be used as the focal point for establishing these populations are rare, and this is a limiting factor in” the frog’s recov- ery. 77 Fed. Reg. at 35124. After a peer reviewer suggested Unit 1 as a po- tential site, that peer reviewer and a FWS biologist “assessed the habitat quality of ephemeral wetlands in [Unit 1] and found that a series of five ponds con- tained the habitat requirements for PCE 1.” 77 Fed. Reg. at 35123; AR2320. The five ponds’ close proxim- ity to each other meant that a metapopulation struc- ture existed, which increases long-term survival and recovery of the frog; FWS determined that these ponds in Unit 1 “provide breeding habitat that in its totality is not known to be present elsewhere within the historic range.” 77 Fed. Reg. at 35124. Based on 106a this scientific information, FWS determined that Unit 1 is essential for the conservation of the frog because it provides: (1) Breeding habitat for the [frog] in a landscape where the rarity of that habitat is a primary threat to the spe- cies; (2) a framework of breeding ponds that supports metapopulation structure important to the long-term survival of the [frog]; and (3) geographic distance from extant [frog] popu- lations, which likely provides protection from environmental stochasticity. Id. Notably, the plaintiffs do not meaningfully dis- pute the scientific and factual bases of FWS’s “essen- tial” determination. Instead, the plaintiffs insist that Unit 1 can not be “essential” for the conservation of the frog because the frog does not even live there. In- deed it hasn’t been sighted there since the 1960s. But the plaintiffs ignore the clear mandate of the ESA, which tasks FWS with designating unoccupied areas as critical habitat. 16 U.S.C. § 1532(5)(A)(ii). FWS’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, a statutory scheme focused not only on conservation but also on recovery of an endangered species. 2. Must unoccupied areas contain PCEs to be designated critical habitat? Plaintiffs similarly argue that FWS acted unrea- sonably in designating Unit 1 as critical habitat be- 107a cause Unit 1 does not contain all of the PCEs?° as re- quired by the ESA. Their position is, again, contrary to the ESA; plaintiffs equate what Congress plainly differentiates: the ESA defines two distinct types of critical habitat, occupied and unoccupied; only occu- pied habitat must contain all of the relevant PCEs. See 16 U.S.C. § 1532(5)(A).26 Wise or unwise, that is for Congress to decide. Unit 1 is unoccupied. Unlike occupied habitat, on which FWS must find all of the physical or biological features called PCEs (50 C.F.R. § 424.12(b)),27 Con- gress does not define unoccupied habitat by reference to PCEs; rather, FWS is tasked with designating as critical unoccupied habitat so long as it determines it is “essential for the conservation of the species” and 25 PCEs are those “physical and 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.” 77 Fed. Reg. at 35131. 26 (5)(A) The term “critical habitat” for a threatened or endan- gered species means- (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the pro- visions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (11) 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 pro- visions of section 1533 of this title, upon a determ*nation by the Secretary that such areas are essential for the conserva- tion of the species. 16 U.S.C. § 1532(5)(A). 27 The cases invoked by plaintiffs in support of their argument are distinguishable in that they relate to designations of occu- pied habitat. 108a “only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” 50 C.F.R. § 424.12(e). As previously ex- plained, FWS determined that the recovery of the frog “will not be possible without the establishment of additional breeding populations of the species” and it found that the ponds in Unit 1 “provide breeding habitat that in its totality is not known to be present elsewhere within the historic range.””* The plaintiffs have not demonstrated that FWS’s findings are im- plausible. 3. Did FWS act unreasonably in failing to iden- tify the point at which ESA protections will no longer be required for the dusky gopher frog? Before determining what is “essential” to the conservation of the dusky gopher frog, the plaintiffs contend that FWS first must identify the point at which the protections of the ESA will no longer be required. The defendants respond that the plaintiffs improperly seek to import the recovery planning cri- teria into the critical habitat designation process. The Court agrees. The plaintiffs’ argument runs counter to the plain language and structure of the ESA, which pro- vides that the requirement for designating critical 28 Federal defendants explain “[ijf the biggest threat to a criti- cally endangered species is the destruction of habitat, as is the case with the frog, it does not make sense to hamstring FWS' ef- forts to conserve the species by limiting the designation of habi- tat to only those areas that contain optimal conditions for the species. If such habitat was readily available, the frog would not be reduced to 100 individuals.” Again, if this administrative structure is to be changed, it is for Congress to do so. 109a habitat (16 U.S.C. § 1533(a)(3)) is separate from the requirement for preparing a recovery plan (16 U.S.C. § 1533(f). The ESA recognizes that FWS must des- ignate critical habitat, habitat that is “essential for the conservation of the species”, even if it does not know precisely how or when recovery of a viable population will be achieved. See Home Builders Ass'n of Northern California v. U.S. Fish and Wildlife Ser- vice, 616 F.3d 983, 989 (9th Cir. 2010) (rejecting ar- gument that FWS must first identify the point at which the endangered species is considered con- served before it designates critical habitat “because it lacks legal support and is undermined by the ESA's text.”); Arizona Cattle Growers’ Ass'n uv. Kempthorne, 534 F. Supp. 2d 1013, 1025 (D. Ariz. 2008) (“While tempting in its logical simplicity . . . the language of the ESA requires a point of conserva- tion to be determined in the recovery plan, not at the time of critical habitat designation.”), affd, Arizona Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160 (2010), cert. denied, 131 S. Ct. 1371 (2011). Moreover, in directing FWS to assess what would be “essential for the conservation” of a species, it did not explicitly require that FWS identify specific recovery criteria at that time. Notably, Congress imposed specific deadlines for the designation of critical habitat, but included no such deadlines for the preparation of a recovery plan. FWS’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 in- validate its finding that Unit 1 was part of the min- imum required habitat for the frog’s conservation.”® 29 Plaintiffs advance additional arguments that are clearly re- 110a butted by defendants and, most critically, by the ESA’s man- date. For example, plaintiffs contend that, to uphold the Rule as valid, it can only apply to the general geographic area in which the frog was found at the time the listing decision for it was made in 2001. This is the same sort of argument already con- sidered and foreclosed by the ESA's clear text. Plaintiffs seek to conflate listing duties with critical habitat designation duties and, again, ignore the plain statutory distinction between occu- pied and unoccupied habitat. The plaintiffs also argue that the designation is arbitrary because the agency should have exer- cised its discretion te exclude Unit 1. But this failure to exclude argument—to the extent it is reviewable (see The Cape Hatteras Access Preservation Alliance v. U.S. Dep't of Intertor, 731 F. Supp. 2d 15, 29 (D.D.C. 2010) (Service's decision not to exclude areas from critical habitat designation 1s not reviewable pursu- ant to the ESA)) seems better directed to plaintiffs’ challenge to FWS’s consideration of the economic impacts of designation. Finally, to the extent the plaintiffs suggest that the Rule is overbroad, they fail to support their argument. The defendants submit that all of Unit 1 meets statutory and regulatory criteria for critical habitat; they base their decision on survey method- ologies, historical data, and the need for corridors between breeding sites to maintain connectivity and gene flow. To put a finer point on it, the methodology used for delineating the criti- cal habitat unit boundaries starts by using “digital aerial pho- tography using ArcMap 9.3.1 to map. . .[t]hose locations of breeding sites outside the geographic area occupied by the spe- cies at the time it was listed . . . that were determined to be es- sential for the conservation of the species. . .." 77 Fed. Reg. 35134. FWS looked to breeding sites deemed essential for con- servation, the ephemeral ponds. From these points, FWS creat- ed a buffer by using “a radius of 621 m (2,037 ft).” Id. FWS “chose the value of 621 m. . .by using the median farthest dis- tance movement (571 m (1,873 ft)) from data collected during multiple studies of the gopher frog . . . and adding 50 m (164 ft) to this distance to minimize the edge effects of the surrounding land use. . ..” Id. FWS then “used aerial imagery and ArcMap to connect critical habitat areas within 1,000 m (3,281 ft) of each other to create routes for gene flow between breeding sites and metapopulation structure.” Jd. With respect to Unit 1, FWS ex- llla 4. Did FWS designate critical habitat for a species that is not listed as endangered? The Poitevent Landowners argue that the “Mis- sissippi” gopher frog, not the dusky gopher frog, is the frog on the endangered species list. For this rea- son, they insist that the Rule is invalid. The defend- ants counter that plaintiffs willfully ignore FWS’s taxonomic explanation in the Rule; its mere change of the common and scientific name of the frog does not alter the fact that the listed entity remains the same. A review of the listing leading up to the desig- nation supports FWS’s position. Recall that in 2001 FWS listed a distinct popula- tion segment of the gopher frog subspecies and pro- vided a scientific definition of the listed frog. During that listing process, FWS explained that the popula- tion segment was so distinct that some biologists be- lieved it should be recognized as its own species, ra- ther than just a distinct population segment. Be- cause there was still some dispute, FWS concluded that “[t]he scientific name, Rana capito sevosa, will plained that “the last observation of a dusky gopher frog in Lou- isiana was in 1965 in one of the ponds within [Unit 1],” and that at least two of the ponds in this immediate area were for- mer breeding sites, and that the five ponds close to each other could create a metapopulation. Id. at 35123-25. It was from these ephemeral ponds that FWS applied its methodology (621 m buffer and routes for gene flow) to create Unit 1’s boundaries that resulted in the designation of 1,544 acres in Unit 1. Scien- tific findings that are not credibly called into question by plain- tiffs’ hopeful argument. See Medina County Environmental Ac- tion Ass'n v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010) (“Where an agency's particular technical expertise is 1n- volved, we are at our most deferential in reviewing the agency's findings.”). The Court defers, as it must under the law, to FWS's methodology for delineating Unit 1’s boundaries. 11l2a be used to represent this distribution of frogs [but] if the name Rana sevosa is ultimately accepted by the herpetological scientific community, we will revise our List .. . to reflect this change in nomenclature (scientific name).” 66 Fed. Reg. 62993. Indeed, the scientific community recently did conclude that the species it listed as a distinct population segment of the Mississippi gopher frog in 2001 “is different from other gopher frogs and warrants acceptance as its own species .. . and the scientific name for the spe- cies was changed to Rana sevosa.” 77 Fed. Reg. 35118. FWS also changed the common name of this distinct population segment of the gopher frog from Mississippi gopher frog to Dusky gopher frog. Contrary to the plaintiffs’ argument, FWS did not simply arbitrarily “change its mind” about the name of the frog; rather, it adapted changes accepted in the scientific community. Plaintiffs elevate form over substance; they fail to persuade that the listed entity, this distinct population of gopher frogs, has changed, or that FWS’s taxonomic finding is unsup- ported.*” And, the Court finds that FWS, acting in its expertise, considered the best scientific evidence in effecting a change in the taxonomic and common name of the frog.*! ee mm ee — %® And the record belies the plaintiffs’ charge that they were de- nied the opportunity to publicly comment on the name change. In fact, the plaintiffs submitted comments on the revised pro- posed rule, in which FWS asked for comments on the proposed name change. 76 Fed. Reg. 59774, 59775. 31 Cf. Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1260 (11th Cir. 2007) (“The Service's finding that the Alabama sturgeon is a separate species is consistent with the [scientists’] position. . .on the question and is supported by. . . peer review|,] and by the opinion of the Service's own experts.”). 113a 5. Does FWS’s alleged “trespass” on Unit 1 in- validate the Rule? The Poitevent Landowners charge that FWS and a scientist trespassed on its lands in March 2011; they took photos and, as a result of the ponds discov- ered there, included Unit 1 in the Rule. Although the Poitevent Landowners concede that Weyerhaeuser, a co-owner and lessee, granted permission to the FWS agent and scientist to enter the land, plaintiffs insist that such permission was invalid. Plaintiffs insist that invalidation of the Rule is the proper way to in- demnify them for their trespass damages. Alterna- tively, the Poitevent Landowners suggest that the Court apply the “civil equivalent” of the fruit-of-the- poisonous-tree doctrine and exclude the evidence as illegally obtained. This argument was raised for the first time in their reply papers, and the Poitevent plaintiffs fail to plead a trespass claim. They likewise fail to suggest how any such claim would be timely, or why— (assuming for the sake of argument) their fictitious civil fruit-of-the-poisonous-tree doctrine applies— FWS’s reliance on Weyerhaeuser’s good faith consent (again borrowing from exclusionary rule principles in the criminal context) would not validate the “tres- pass.” The Court declines to address the merits of this argument, which is not properly before it, has not been properly or timely raised, and seems an af- terthought. B. The Court now turns to address what, in its view, is the most compelling issue advanced by plain- tiffs in challenging the validity of the Rule: FWS’s economic analysis and, perhaps most troubling, its ll4a conclusion that the economic impacts on Unit 1 are not disproportionate. Plaintiffs contend that designating Unit 1 a. crit- ical habitat is irrational. Unit 1, they submit, pro- vides no benefit to the dusky gopher frog and the designation’s estimated potential price tag for the landowners’ damage is somewhere between $20.4 million and $33.9 million. Defendants answer that FWS fulfilled its statutory obligation and applied the proper approach to consider all potential economic impacts to Unit 1. Once again the Court is restrained by a confining standard of review. The Court, there- fore, is not persuaded that FWS engaged a flawed economic analysis or otherwise failed to consider all potential economic impacts the designation would have on Unit 1. The decision to list a species as endangered is made without reference to the economic effects of the listing decision. Not so with critical habitat designa- tions. The ESA directs that the “Secretary shall des- ignate critical habitat . . . on the basis of the best sci- entific data available and after taking into considera- tion the economic impact .. . of specifying any par- ticular area as critical habitat.” 16 U.S.C. § 1533(b)(2). Informed by these considerations, FWS exercises its wide discretion in determining whether to exclude particular areas. See 16 USC. § 1533(b)(2) (the Service “may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat”); see also The Cape Hatteras Access Preservation Alliance v. U.S. Dept. of Interior, 731 F. Supp. 2d 15, 29-30 (D.D.C. 2010) (citing Arizona Cattle Growers’ Ass'n v. Kempthorne, 534 F. Supp. 2d 1013, 1032 (D. Ariz. 115a 2008)). But the Service is precluded from excluding areas from a designation if it determines that “fail- ure to designate such area as critical habitat will re- sult in extinction of the species.” 16 U.S.C. § 1533(b)(2). The plaintiffs contend that FWS failed to consid- er all economic impacts of the critical habitat desig- nation. But, in fact, the record establishes that FWS considered several potential economic impacts. The record shows that FWS endeavored to consider any economic impacts that could be attributable to the designation, and that plaintiffs were given (and in- deed availed themselves of) the opportunity to partic- ipate in the process for evaluating economic impacts. The Court finds that FWS fulfilled its statutory obli- gation. The outcome seems harsh, but it is not un- lawful under the present administrative process and this Court's confined standard of review. Nevertheless, the plaintiffs object to FWS'’s methods and findings on the issue of the designa- tions’s economic impact. Plaintiffs challenge F'WS's utilization of the baseline method for considering po- tential economic impacts, and argue that, no matter what method is used, FWS arbitrarily concluded that “foJur economic analysis did not identify any dispro- portionate costs that are likely to result from the des- ignation.” Although the plaintiffs’ dispute as to the appropriate method for considering economic impacts is unfounded, their challenge to FWS’s ultimate con- clusion invites rigorous scrutiny. As an initial matter, FWS permissibly used the baseline approach in conducting the economic analy- sis (EA). Under this approach, the impacts of protect- ing the dusky gopher frog that will occur regardless of the critical habitat designation (i.e., the burdens 116a imposed by simply listing the frog) are treated as part of the regulatory baseline and are not factored into the economic analysis of the effects of the critical habitat designation; the approach calls for a compar- ison of “the world with the designation . . . to the world without it.” See The Cape Hatteras Access Preservation Alliance v. U.S. Dept. of Interior, 344 F. Supp. 2d 108, 127 (D.D.C. 2004); see also Cape Hat- teras II, 731 F. Supp. 2d 15, 30 (D.D.C. 2010).%2 Consideration of economic impacts is all that is required. FWS fulfilled this statutory mandate by identifying baseline economic impacts. And the final EA quantified impacts that may occur in the 20 years following designation, analyzing such economic impacts of designating Unit 1 based on the following three hypothetical scenarios: (1) development occur- ring in Unit 1 would avoid impacts to jurisdictional wetlands and, thus, would not trigger ESA Section 7 consultation requirements; (2) development occur- ring in Unit 1 would require a permit from the Army Corps of Engineers due to potential impacts to juris- dictional wetlands, which would trigger ESA Section 7 consultation between the Corps and FWS; and FWS would work with landowners to keep 40% of the unit for development and 60% managed for the frog’s conservation (“present value incremental impacts of critical habitat designation due to the lost option for developing 60 percent of Unit 1 lands are $20.4 mil- * To the extent the plaintiffs object to the baseline approach and instead advocate for the co-extensive approach to assessing economic impacts, the plaintiffs fail to explain how such an ap- proach changes the economic analysis. The defendants contend, and the Court agrees, that the baseline and co-extensive meth- ods of analyzing potential economic impacts yield the same re- sults. ll7a lion”); and (3) development occurring would require a federal permit, triggering ESA Section 7 consulta- tion, and FWS determines that no development can occur in the unit (“present value impacts of the lost option for development in 100 percent of the unit are $33.9 million”).*? Because the EA “did not identify any disproportionate costs that are likely to result from the designation[,] the Secretary [did] not exercis[e] his discretion to exclude any areas from this designation of critical habitat for the dusky go- pher frog based on economic impacts.” 77 Fed. Reg. 35141. The plaintiffs do not take issue with these pro- jected costs but, rather, insist that FWS’s conclu- sion—its decision not to exclude Unit 1 from the des- ignation in light of what the potential economic im- pacts in the event Section 7 consultation is trig- gered—is arbitrary. This is so, plaintiffs contend, because their land is the only land designated that faces millions of dollars in lost development oppor- tunity if the consultation process is triggered. How can FWS say that the economic impacts are not dis- proportionate? FWS defends its determination in the Rule: “con- siderable uncertainty exists regarding the likelihood of a Federal nexus for development activities [in Unit 1}.” The record confirms that FWS considered poten- tial economic impacts and exercised its discretion, considered potential costs associated with Section 7 consultation, and determined that these economic 88 In preparing the final version of the EA, FWS considered iInit I’a landowners’ comments, as well as the landowners submissions regarding the value of Unit 1 land. 11l8a impacts to Unit 1 were not disproportionate.” All that the ESA requires. The Court, with its somewhat paralyzing standard of review, defers to the agency's expertise in its methods for cost projections and its refusal to except Unit 1 from the designation.*5 Only Congress can change the regime of which plaintiffs understandably complain. C. Finally, the Court considers whether the Secre- tary acted arbitrarily in failing to prepare an envi- ronmental impact statement. The plaintiffs submit that the defendants’ failure to complete an Environmental Impact Statement concerning the critical habitat designation of Unit 1 violates the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et. seq., a statute that serves the dual purposes of informing agency decisions as to the significant environmental effects of proposed ma- jor federal actions and ensuring that relevant infor- mation is made available to the public. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). The defendants counter that, pursuant to “ The alleged arbitrariness of the “not disproportionate” deter- mination is undermined by the uncertain potential for devel- opment. The ESA only requires that the Service consider all po- tential costs, which it has done. Although this “not dispropor- tionate” conclusion is discomforting it, again, is harsh but not invalid as the law exists. 3% As always, the Court is mindful of its scope of its constrained review. “If the agency's reasons and policy choices conform to minimal standards of rationality, then its actions are reasona- ble and must be upheld.” Luminant Generation Co. LLC vu. U.S. E.P_A., 714 F.3d 841, 850 (5th Cir. 2013) (quoting Tex. Oil & Gas Ass'n v. U.S. E.P_A., 161 F.3d 923, 933 (5th Cir. 1998)). 119a long-standing FWS policy, an EIS is simply not re- quired when designating critical habitat.“ They are correct. In passing NEPA, Congress declared that it is the continuing policy of the federal government to “create and maintain conditions under which man and nature can exist in productive harmony, and ful- fill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. § 4331. Specifically listed as having a “pro- found influence” on this natural environment that Congress sought to protect are population growth, high-density urbanization, industrial expansion, re- source exploitation, and new and expanding techno. logical advances. Jd. To accomplish these objectives, NEPA requires that an agency prepare a comprehen- sive environmental impact statement (EIS) for “ma- jor Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(c). “Notably, the NEPA statutory framework provides no substantive guarantees; it prescribes adherence to a particular process, not the production of a particu- % The defendants also argue that the plaintiffs lack prudential standing to bring a NEPA claim because their claims of eco- nomic harm fall outside the zone of environmental interests protected by NEPA. Indeed, the Court agrees that prudential standing for NEPA claims is doubtful, given the economic na- ture of the harm asserted by the plaintiffs and the environmen- tal interests protected by NEPA. See Nevada Land Action Ass'n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993) (“The pur- pose of NEPA is to protect the environment, not the economic interests of those adversely affected by agency decisions. There- fore a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA”) (ci- tations omitted). Nevertheless, the Court considers whether an KIS is required 120a lar result.” Spiller v. White, 352 F.3d 235, 238 (5th Cir. 2003) (NEPA “does not prohibit the undertaking of federal projects patently destructive of the envi- ronment” but, rather, requires “only that [an agency] make its decision to proceed with the action after taking a ‘hard look at environmental consequenc- 9°? es. ). Congress does not expressly mandate prepara- tion of an EIS for critical habitat designations. Nev- ertheless, through tortured reasoning, the plaintiffs assert that an EIS was required because NEPA de- mands an EIS for “major Federal actions significant- ly affecting the quality of the human environment” and the critical habitat designation here involves a change to the physical environment. 42 U.S.C. § 4332(C). Tossing aside the conservation objectives achieved by critical habitat designations, plaintiffs go on to detail the modifications to Unit 1 that would make it optimal habit for the frog, namely regular burning of the land and planting different trees. However, the ESA statutory scheme makes clear that FWS has no authority to force private landown- ers to maintain or improve the habitat existing on their land.*’ 77 Fed. Reg. 35118, 35121, 35128. FWS cannot and will not instruct the plaintiffs to burn their land, thus, the PCEs serve as nothing more than descriptors of ideal habitat. Plaintiffs invoke Catron County Bd. Of Com’rs, New Mexico v. U.S. Fish and Wildlife Serv., 75 F.3d 1429, 1436-39 (10th *’ The only “bite” to the statute is the consultation requirement, which simply requires that, when a private party's action has a federal nexus, the federal agency authorizing such action must first consult with the Secretary. 16 U.S.C. § 1536(a)(2). Activi- ties such as timber management lack a federal nexus and are therefore exempt. l2la Cir. 1996). There, the Tenth Circuit determined that designation of critical habitat would harm the envi- ronment by limiting the county’s ability to engage in flood control efforts. Jd. Unlike the critical habitat designation in that case—where the environmental impact of the critical habitat designation “will be immediate and disastrous”—the critical habitat Rule designating Unit 1 does not effect changes to the physical environment. Moreover, the Ninth Circuit has expressly held that NEPA does not apply to critical habitat designa- tions. Douglas County v. Babbitt, 48 F.3d 1495, 1501—08 (9th Cir. 1995) (considering issue of first impression, and determining that NEPA does not apply to the Secretary’s decision to designate critical habitat under the ESA). In so holding, the Ninth Cir- cuit articulated three reasons why critical habitat designations are not subject to NEPA: (1) the ESA displaced the procedural requirements of NEPA with respect to critical habitat designation; (2) NEPA does not apply to actions that do not alter the physical en- vironment; and (3) critical habitat designation serves the purposes of NEPA by protecting the environment from harm due to human impacts. Jd. Three logical reasons. The Fifth Circuit agrees that NEPA itself provides, in no uncertain terms, that alteration of the physical environment is a prerequisite for NEPA application and the need to prepare an EIS.** See % The Fifth Circuit has not directly addressed whether NEPA applies to critical habitat designations. Based on competing au- thority within the Fifth Circuit, one district court has applied the arbitrary and capricious standard to decisions not to pre- pare EISs. See Center for Biological Diversity v. U.S. Fish and Wildlife Service, 202 F. Supp. 2d 594, 646-48 (W.D. Tex. 2002) (citations omitted). 122a Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 679 (5th Cir. 1992) (“[T]he acquisition of the [negative conservation] easement by [FWS] did not effectuate any change to the environment which would otherwise trigger the need to prepare an EIS.”); see also City of Dallas v. Hall, 562 F.3d 712, 721-23 (5th Cir. 2009) (setting an acquisition bound- ary for a wildlife refuge did not alter the physical en- vironment and therefore did not require the prepara- tion of an EIS). For all of these reasons, the Court finds that the Secretary was not required to prepare an EIS before designating Unit 1 as critical habitat.*® xk** Accordingly, IT IS ORDERED: that the defend- ants’ motions to strike extra-record evidence are GRANTED; the defendants’ motions for summary judgment are DENIED in part (insofar as they chal- lenge the plaintiffs’ standing) and GRANTED in part (insofar as the Rule including Unit 1 in its critical habitat designation is not arbitrary); and the plain- tiffs’ cross-motions are GRANTED in part (plaintiffs have standing) and DENIED in part (the Rule is sus- tained).*° 38 As defendants acknowledge, there is nothing to preclude preparation of an EIS if or when changes to the physical envi- ronment become required, if consultation is triggered. “ The Court is compelled to remark on the extraordinary scope of the ESA, the Court's limited scope of review on the matters presented, and the reality that what plaintiffs truly ask of the Court is to embrace or countenance a broad substantive policy: they effectively ask the Court to endorse—contrary to the ex- press terms and scope of the statute—-a private landowner ex- emption from unoccupied critical habitat designations. This, the Third Branch, is the wrong audience for addressing this matter of policy. 123a APPENDIX C UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-31008 MARKLE INTERESTS, L.L.C.; P&F Lumber Com- pany 2000, L.L.C.; PF Monroe Properties, L.L.C., Plaintiffs—Appellants, Vv. 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 Weyerhaeuser Company, Plaintiff—Appellant Vv. United States Fish and Wildlife Service; Daniel M. Ashe, Director of United States Fish & Wildlife Ser- vice, in his official capacity; Sally Jewell, in her offi- cial capacity as Secretary of the Department of Interior, Defendants—Appellees Center for Biological Diversity; Gulf Restoration Network, intervenor Defendants—Appellees 122a Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 679 (5th Cir. 1992) (“[T]he acquisition of the [negative conservation] easement by [FWS] did not effectuate any change to the environment which would otherwise trigger the need to prepare an EIS.”); see also City of Dallas v. Hall, 562 F.3d 712, 721-23 (5th Cir. 2009) (setting an acquisition bound- ary for a wildlife refuge did not alter the physical en- vironment and therefore did not require the prepara- tion of an EIS). For all of these reasons, the Court finds that the Secretary was not required to prepare an EIS before designating Unit 1 as critical habitat.*° xk Accordingly, IT IS ORDERED: that the «efend- ants’ motions to strike extra-record evidence are GRANTED; the defendants’ motions for summary judgment are DENIED in part (insofar as they chal- lenge the plaintiffs’ standing) and GRANTED in part (insofar as the Rule including Unit 1 in its critical habitat designation is not arbitrary); and the plain- tiffs’ cross-motions are GRANTED in part (plaintiffs have standing) and DENIED in part (the Rule is sus- tained). 3° As defendants acknowledge, there is nothing to preclude preparation of an EIS if or when changes to the physical envi- ronment become required, if consultation is triggered. © The Court is compelled to remark on the extraordinary scope of the ESA, the Court’s limited scope of review on the matters presented, and the reality that what plaintiffs truly ask of the Court is to embrace or countenance a broad substantive policy: they effectively ask the Court to endorse—contrary to the ex- press terms and scope of the statute—a private landowner ex- emption from unoccupied critical habitat designations. This, the Third Branch, is the wrong audience for addressing this matter of policy. 123a APPENDIX C UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-31008 MARKLE INTERESTS, L.L.C.; P&F Lumber Com- pany 2000, L.L.C.; PF Monroe Properties, L.L.C., Plaintiffs—Appellants, Vv. 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 Weyerhaeuser Company, Plaintiff—Appellant v. United States Fish and Wildlife Service; Daniel M. Ashe, Director of United States Fish & Wildlife Ser- vice, in his official capacity; Sally Jewell, in her offi- cial capacity as Secretary of the Department of Interior, Defendants—Appellees Center for Biological Diversity; Gulf Restoration Network, Intervenor Defendants—Appellees 124a Cons. w/l. 4-31021 February 13, 2017 Appeals from the United States District Court for the Eastern District of Louisiana, New Orleans, Martin L.C. Feldman, U.S. District Judge ON PETITION FOR REHEARING EN BANC (Opinion June 30, 2016) Before REAVLEY, OWEN, and HIGGINSON, Cir- cuit Judges. Opinion STEPHEN A. HIGGINSON, Circuit Judge: The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the Petition for Rehearing En Banc is DE- NIED. In the en banc poll, six judges voted in favor of rehearing (Judges Jolly, Jones, Smith, Clement, Owen, and Elrod) and eight judges voted against re- hearing (Chief Judge Stewart and Judges Dennis, Prado, Southwick, Haynes, Graves, Higginson, and Costa). Judge Jones, joined by Judges Jolly, Smith, Clement, Owen, and Elrod, dissents from the court’s denial of rehearing en banc, and her dissent is at- tached. JONES, Circuit Judge, joined by JOLLY, SMITH, CLEMENT, OWEN, and ELROD, Circuit Judges, dissenting from Denial of Rehearing En Banc: 125a 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.” Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452, 458 n.2 (5th Cir. 2016). The panel majority regretta- bly 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. I respectfully dissent. The panel opinion, over Judge Owen's cogent dis- sent, id. at 480—94, approved an unauthorized exten- sion of ESA restrictions to a 1,500 acre-plus Louisi- ana land tract that is neither occupied by nor suita- ble for occupation by nor connected in any way to the “shy frog.” The frogs currently live upon or can in- habit eleven other uncontested critical habitat tracts in Mississippi. No conservation benefits accrue to them, but this designation costs the Louisiana land- owners $34 million in future development opportuni- ties. Properly construed, the ESA does not authorize this wholly unprecedented regulatory action. The panel majority upheld the designation of the tract as “unoccupied critical habitat.” See 16 U.S.C. § 1532(5)(A)(ii). Relying on administrative deference, the majority reasoned that (1) the ESA and its im- plementing regulations have no “habitability re- quirement”; (2) the (unoccupied) Louisiana land is “essential for the conservation of’ the frog even though it contains just one of three features critical to dusky gopher frog habitat; and (3) the Fish and Wildlife Service’s decision not to exclude this tract from critical-habitat designation is discretionary and thus not judicially reviewable. I respectfully submit that all of these conclusions are wrong. 126a Each issue turns essentially on statutory con- struction, not on deference to administrative discre- tion or scientific factfinding. The panel majority opinion obscures the necessity for careful statutory exposition. More troublingly, the majority opinion fails to distinguish relevant precedent that recog- nized Congress's prescribed limit to designations of unoccupied critical habitat. Further, in declaring the decision not to exclude this tract as beyond judicial review, the panel did not notice Bennett v. Spear, 520 U.S. 154, 117 S. Ct. 1154 (1997), which upholds judi- cial review for this exact statute, and the panel ma- jority ignored recent Supreme Court precedents that have reined in attempts to prevent judicial review of agency action. Despite the majority's disclaimers and attempt to cabin their rationale, the ramifications of this deci- sion for national land use regulation and for judicial review of agency action cannot be underestimated. Fifteen states appear as amici urging rehearing en banc. For reasons explained herewith and by Judge Owen’s dissent, | would have granted rehearing en banc. I. Background The U.S. Fish and Wildlife Service (the Service) is one of two agencies tasked with implementing the ESA. The ESA requires the identification and listing of endangered and threatened species. When a par- ticular species is listed, the Service must designate the species’ “critical habitat.” In particular, the Ser- vice to the maximum extent prudent and deter- minable ... shall... designate any habitat of such species which is then considered to be 127a critical habitat ... and... may, from time- to-time thereafter as appropriate, revise such designation. 16 U.S.C. § 1533(a)(3)(A)()—G). “Critical habitat” is defined in an earlier provi- sion 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 (1) essen- tial to the conservation of the species and (If) which may require special management con- siderations or protection; [“occupied critical habitat”] and (ii) specific areas outside the geographical ar- ea occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determina- tion by the Secretary that such areas are es- sential for the conservation of the species. {[“unoccupied critical habitat”} Id. § 1532(5)(A)G)—(u). Finally, the Service shall designate critical habi- tat “after taking into consideration the economic im- pact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat,” but it may exclude any area from such designation if “the benefits of such exclusion outweigh the benefits of specifying such area” as crit- ical habitat. Jd. § 1533(b)(2). 128a Critical-habitat designation is consequential. “Designation of private property as critical habitat can impose significant costs on landowners because federal agencies may not authorize, fund, or carry out actions that are likely to ‘result in the destruc- tion or adverse modification’ of critical habitat.” Otay Mesa Prop., L.P. v. U.S. Dep't of Interior, 646 F.3d 914, 915 (D.C. Cir. 2011) (quoting 16 U.S.C. § 1536(a)(2)). The Service listed the dusky gopher frog as en- dangered in 2001. Final Rule to List the Mississippi Gopher Frog Distinct Population Segment of Dusky Gopher Frog As Endangered, 66 Fed. Reg. 62,993 (Dec. 4, 2001). Goaded by a lawsuit, and after notice and comment, the Service published a final rule des- ignating critical habitat in 2012. Designation of Crit- ical Habitat for Dusky Gopher Frog, 77 Fed. Reg. 35,118 (June 12, 2012) [hereinafter Final Designa- tion]. The critical-habitat designation included units spanning several thousand acres in Mississippi, and, as relevant here, Unit 1—consisting of 1,544 acres in Louisiana, which are not occupied by the dusky go- pher frog. Jd. The Service was thus required to show that Unit 1—the “specific area”—is “essential for the conservation of the [dusky gopher frog].” 16 U.S.C. § 1532(5)(A)(ii). Unlike all of the Mississippi units, Unit 1 is un- inhabitable by the shy frog. Final Designation, 77 Fed. Reg. at 35,131. Unit 1, in fact, contains only one of the three “physical and biological features” deemed necessary to dusky gopher frog habitat —five ephemeral ponds that could support the frog's repro- duction. Jd. at 35,123, 35,132. Worse | still, “[a]pproximately ninety percent of [Unit 1] is cur- rently covered with closed canopy loblolly pine plan- 129a tations,” and the two remaining features essential for the frog’s conservation require an open-canopied longleaf pine ecosystem. Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452, 482 (5th Cir. 2016) (Owen, J., dissenting); Final Designation, 77 Fed. Reg. at 35,131. In the Service’s own words, “the surrounding uplands are poor-quality terrestrial habitat for dusky gopher frogs.” Final Designation, 77 Fed. Reg. at 35,133. The Service admitted that without “prescribed burning” and creating a “forest- ed habitat (preferably longleaf pine),” among other measures, Unit | is “unsuitable as habitat for dusky gopher frogs.” Id. at 35,129, 35,132. Designating Unit 1 as critical habitat also por- tends significant economic losses to the landowners in Unit 1. The Service acknowledged that critical- habitat designation could result in economic impacts of up to $34 million, stemming from lost development opportunities. Id. at 35,140. Despite Unit 1’s flaws, however, the Service as- serted that “the presence of the PCEs [the physical and biological features essential for the frog’s conser- vation] is not a necessary element in [the unoccupied critical habitat] determination.” Jd. at 35,123. The Service expressed its “hope to work with the land- owners to develop a strategy that will allow them to achieve their objectives for the property and protect the isolated, ephemeral ponds that exist there.” Id. But of course, the Service's preferred “tools and pro- grams 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 land- owner.” /d. In addition, the Service stated that its “economic analysis did not identify any dispropor- 128a Critical-habitat designation is consequential. “Designation of private property as critical habitat can impose significant costs on landowners because federal agencies may not authorize, fund, or carry out actions that are likely to ‘result in the destruc- tion or adverse modification’ of critical habitat.” Otay Mesa Prop., L.P. v. U.S. Dep't of Interior, 646 F.3d 914, 915 (D.C. Cir. 2011) (quoting 16 U.S.C. § 1536(a)(2)). The Service listed the dusky gopher frog as en- dangered in 2001. Final Rule to List the Mississippi Gopher Frog Distinct Population Segment of Dusky Gopher Frog As Endangered, 66 Fed. Reg. 62,993 (Dec. 4, 2001). Goaded by a lawsuit, and after notice and comment, the Service published a final rule des- ignating critical habitat in 2012. Designation of Crit- ical Habitat for Dusky Gopher Frog, 77 Fed. Reg. 35,118 (June 12, 2012) [hereinafter Final Designa- tion|. The critical-habitat designation included units spanning several thousand acres in Mississippi, and, as relevant here, Unit 1—consisting of 1,544 acres in Louisiana, which are not occupied by the dusky go- pher frog. Id. The Service was thus required to show that Unit 1—the “specific area” —is “essential for the conservation of the [dusky gopher frog].” 16 U.S.C. § 1532(5)(A)(ii). Unlike all of the Mississippi units, Unit 1 is un- inhabitable by the shy frog. Final Designation, 77 Fed. Reg. at 35,131. Unit 1, in fact, contains only one of the three “physical and biological features” deemed necessary to dusky gopher frog habitat—five ephemeral ponds that could support the frog’s repro- duction. Id. at 35,123, 35,132. Worse _ still, “[a]pproximately ninety percent of [Unit 1] is cur- rently covered with closed canopy loblolly pine plan- 129a tations,” and the two remaining features essential for the frog’s conservation require an open-canopied longleaf pine ecosystem. Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452, 482 (5th Cir. 2016) (Owen, J., dissenting); Final Designation, 77 Fed. Reg. at 35,131. In the Service’s own words, “the surrounding uplands are poor-quality terrestrial habitat for dusky gopher frogs.” Final Designation, 77 Fed. Reg. at 35,133. The Service admitted that without “prescribed burning” and creating a “forest- ed habitat (preferably longleaf pine),” among other measures, Unit 1 is “unsuitable as habitat for dusky gopher frogs.” /d. at 35,129, 35,132. Designating Unit 1 as critical habitat also por- tends significant economic losses to the landowners in Unit 1. The Service acknowledged that critical- habitat designation could result in economic impacts of up to $34 million, stemming from lost development opportunities. Jd. at 35,140. Despite Unit 1's flaws, however, the Service as- serted that “the presence of the PCEs [the physical and biological features essential for the frog’s conser- vation] is not a necessary element in [the unoccupied critical habitat] determination.” Id. at 35,123. The Service expressed its “hope to work with the land- owners to develop a strategy that will allow them to achieve their objectives for the property and protect the isolated, ephemeral ponds that exist there.” /d. But of course, the Service’s preferred “tools and pro- grams 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 land- owner.” Id. In addition, the Service stated that its “economic analysis did not identify any dispropor- 130a tionate costs that are likely to result from the desig- nation.” Id. at 35,141. Therefore, the Service includ- ed Unit 1 as unoccupied critical habitat. The appellants in this case are landowners of Unit 1 involved in timber operations and commercial development. Their suit alleges that because Unit 1 is uninhabitable by the dusky gopher frog, it is not “essential for the conservation of’ the frog as re- quired for unoccupied critical habitat. They also al- lege that the Service never compared the costs and benefits of designating Unit 1 as critical habitat to support its conclusion that designation would cause no “disproportionate” impacts. The district court granted summary judgment in the Service's favor. The panel majority affirmed the district court. The panel majority first rejected any notion that the ESA requires critical habitat to be habitable, charac- terizing such a requirement as an “extra-textual lim- it.” Markle Interests, 827 F.3d at 468 (majority opin- ion). Second, turning to whether Unit 1 met the defi- nition of unoccupied critical habitat, the panel major- ity held that “a scientific consensus as to the presence and rarity of a critical (and difficult to re- produce) feature—-the ephemeral ponds—. . . justi- fied [the Service's] finding that Unit 1 was essential for the conservation of the dusky gopher frog.” Jd. at 471. According to the panel majority, “if the ponds are essential, then Unit 1, which contains the ponds, is essential for the conservation of the dusky gopher frog.”' Id at 472 n.20. Finally, the panel majority ! On this issue, Judge Owen dissented, arguing that the panel majority opinion “re-writes the Endangered Species Act” be- cause “[nJeither the words ‘a critical feature’ nor such a concept appear in the Act.” Id. at 488 (Owen, J., dissenting). “The l3la held that the Service’s decision not to exclude Unit 1 from critical habitat on the basis of economic impact was unreviewable because that decision is committed to the Service’s discretion. Jd. at 473—75. All three holdings are incorrect. II. Contrary to the Panel Majority’s Holding, the ESA Contains a Clear Habitability Re- quirement No one disputes that the dusky gopher frog can- not inhabit Unit 1. The panel majority find that fact irrelevant, however, because looking only at the statute’s definitional section, the ESA does not ap- pear to require that a species actually be able to in- habit its “unoccupied critical habitat.” They dismiss habitability as an “extra-textual limit” that cannot be found in either “the text of the ESA or the imple- menting regulations.” Markle Interests, 827 F.3d at 468 (majority opinion). Read in context, however, the ESA makes clear that a species’ critical habitat must be a subset of that species’ habitat. The ESA’s im- plementing regulations are consistent with this sub- set arrangement. Further, when Congress _ got around to clarifying critical-habitat regulation in 1978, the contemporary understanding of critical habitat, shared alike by the most fervent proponents and opponents of wildlife and habitat protection, was that it meant a part of the species’ actual habitat. Unfortunately, the parties here failed to under- take holistic statutory interpretation. Misled by the touchstone chosen by Congress was ‘essential,” and “[t]he ex- istence 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 charac- teristics.” Id. 132a parties’ briefing, the panel also neglected this effort. Another difficulty is the Ninth Circuit's adoption of a similar, non-habitat interpretation of “unoccupied critical habitat.” See Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 993—94 (9th Cir. 2015). Never- theless, given the significance of this case and the fact that the law is clear beyond dispute, it was our court’s duty to “state what the law is.” A. ASpecies’ Critical Habitat Must Be a Subset of the Species’ Habitat The ESA states that the Service shall, concurrently with making a determi- nation under paragraph (1) that a species is an endangered species or a threatened spe- cies, designate any habitat of such species which is then considered to be critical habitat ... and.. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0771%3A02. Public record. Not legal advice.