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

JONES, Circuit Judge, joined by JOLLY, SMITH, CLEMENT, OWEN, and ELROD, Circuit Judges,

dissenting from Denial of Rehearing En Banc:

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 regrettably 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…