## Facts

- The U.S. Fish & Wildlife Service (FWS) designated “critical habitat” for the endangered dusky gopher frog under the Endangered Species Act (ESA).
- By the time of designation, the frog’s only known remaining population was in Mississippi, though the species historically ranged into Louisiana.
- FWS designated certain Mississippi lands and a privately owned 1,544-acre tract in St. Tammany Parish, Louisiana (Unit 1), largely commercial timberland managed for loblolly pine.
- FWS found Unit 1 contained five high-quality ephemeral ponds necessary for breeding and concluded the tract could be restored with reasonable effort to provide needed upland habitat.
- FWS determined Unit 1 was “essential for the conservation” of the species despite the frog’s absence from the tract at the time.
- Landowners alleged the designation would restrict development and reduce property value and argued Unit 1 was not presently suitable and would require substantial changes to support the frog.
- The district court found the landowners had Article III standing but granted summary judgment for the government on the ESA/APA, Commerce Clause, and NEPA claims.
- Landowners appealed.

## Issues

1. Whether the landowners had Article III standing based on alleged loss of property value and constrained development opportunities.
2. Whether FWS acted arbitrarily and capriciously under the ESA and APA by designating unoccupied Unit 1 as critical habitat as “essential for the conservation” of the frog.
3. Whether FWS’s decision not to exclude Unit 1 from the designation based on economic impacts was judicially reviewable under the APA.
4. Whether applying the ESA critical habitat provisions to Unit 1 exceeded Congress’s Commerce Clause authority.
5. Whether NEPA required an environmental impact statement for the critical habitat designation, and whether the landowners had standing to enforce NEPA.

## Decision

- The Fifth Circuit held the landowners had Article III standing based on alleged concrete economic injury traceable to the designation and redressable by relief.
- The court affirmed that FWS’s designation of Unit 1 as critical habitat was not arbitrary or capricious and reflected a reasonable interpretation of the ESA.
- The court held FWS’s decision not to exclude Unit 1 for economic reasons was committed to agency discretion and not reviewable under the APA.
- The court rejected the as-applied Commerce Clause challenge and upheld the ESA’s application to Unit 1.
- The court held NEPA did not require an environmental impact statement for the designation and that the landowners lacked standing to pursue NEPA claims grounded in economic injury.
- The judgment for the federal defendants was affirmed.

## Legal Principles

- Economic injury such as diminished property value and reduced development opportunities can constitute injury-in-fact for Article III standing when fairly traceable to challenged agency action and redressable by court relief.
- Under the ESA, an agency may designate unoccupied areas as critical habitat when it reasonably determines they are “essential for the conservation of the species,” including where the area contains key physical or biological features and can be made suitable through reasonable restoration.
- Courts defer to reasonable agency interpretations of ambiguous ESA terms under Chevron when Congress has delegated interpretive authority and the agency’s construction is permissible.
- ESA § 4(b)(2) requires consideration of economic impacts but gives FWS discretion whether to exclude areas; where the statute supplies no judicially manageable standard for the final weighing, the non-exclusion decision may be unreviewable under APA § 701(a)(2).
- Where challengers concede the ESA’s critical habitat provisions are generally valid under the Commerce Clause, an as-applied challenge fails absent a showing that applying the statute to the specific designation exceeds Congress’s commerce power.
- NEPA claims require a plaintiff whose asserted injury falls within NEPA’s zone of interests; purely economic harms from regulation are insufficient to establish NEPA standing in this context.

## Conclusion

The Fifth Circuit upheld FWS’s designation of privately owned, unoccupied Louisiana land as critical habitat for the dusky gopher frog, deferred to the agency’s interpretation that the tract was essential to conservation despite needed restoration, treated the agency’s decision not to exclude the tract for economic reasons as unreviewable, and rejected Commerce Clause and NEPA challenges.


Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452 (5th Cir. 2016)