On February 13, a sharply divided U.S. Court of Appeals for the Fifth Circuit , by a vote of 8 to 6, rejected a petition seeking

The Dusky Gopher Frog, once known as the Mississippi Gopher Frog, has an average length of about three inches and a stocky body with colors on its back that range from black to brown or gray and is covered with dark spots and warts. (Western Carolina University photo/ John A. Tupy)
an en banc rehearing of the court’s initial decision in the case of Markel Interests, LLC, et al., v. U.S. Fish and Wildlife Service, et al. In its June 5, 2016 decision, the Fifth Circuit held that 1500 acres of private land located in Louisiana is subject to the requirements of the Endangered Species Act (ESA) with respect to the dusky gopher frog, which was determined to be an endangered species in 2001, but whose “critical habitat” was not designated until 2012. At the present time, the species is located only in Mississippi, but the U.S. Fish and Wildlife Service (Service) designated not only several thousand acres of Mississippi land as its critical habitat, but land in Louisiana as well, reasoning that the presence of five ephemeral ponds on the Louisiana land could support the species’ reproduction. Apart from the presence of these ponds, all parties appear to agree that the Louisiana land is otherwise uninhabitable.
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