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Expert Analysis

5th Circ. ESA Decision Highlights Deference Discord

By Shawn Welch, Holland & Hart LLP (April 18, 2017, 4:01 PM EDT) -- On Feb. 13, 2017, a sharply divided Fifth Circuit declined en banc review of Markle Interests LLC v. United States Fish and Wildlife Service,[1] a split-panel decision upholding the Fish and Wildlife Service's designation of unoccupied critical habitat for the dusky gopher frog. The court declined rehearing over the strident dissent of six judges, stating that the Markle decision involved a strategy in judicial review attributed to the dusky gopher frog itself: "play dead, cover their eyes, peek and play dead again."...

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