Markle Interests, L.L.C. v. United States Fish & Wildlife Service

There is a gap in the reasoning of the majority opinion that cannot be bridged. The area at issue is not presently’ “essential for the conservation of the [endangered] species”1 because it plays no part in the conservation of that species. Its biological and physical characteristics will not support a dusky gopher frog population. There is no evidence of a reasonable probability (or any probability for that matter) that it will become “essential” to the conservation of the species because there is no evidence that the substantial alterations and maintenance necessary to transform the area…