In 2009 several environmental groups petitioned the U.S. Fish and Wildlife Service to initiate rulemaking to designate critical habitat for the Florida panther. In Conservancy of Southwest Florida v. U.S. Fish & Wildlife Service, the Eleventh Circuit upheld the FWS’s decision. The appellate decision hinged largely on language in the Endangered Species Act that grants discretion to an agency in deciding whether to designate critical habitat for a species listed as endangered prior to the 1978 amendments to that Act. This Comment argues that the language relied upon by the court creates an arbitrary timestamp under which species with similar protection needs have substantially dissimilar rights to such protection. Because this Eleventh Circuit interpretation of the Act’s language is sound, a change in the Act’s language is necessary to afford all endangered species the same protection.