D.C. Circuit Overturns Designation of Critical Habitat for the San Diego Fairy Shrimp

On July 22, 2011, the U.S. Court of Appeals for the District of Columbia Circuit held that the Fish and Wildlife Service (Service) erred when it designated 143 acres of private property as critical habitat for the endangered San Diego fairy shrimp (Branchinecta sandiegonensis) based on a single observation of the shrimp on the property in 2001.

The question presented in Otay Mesa Property L.P. v. U.S. Dept. of the Interior, No. 10-5204, 2011 U.S. App. LEXIS 14998 (D.C. Cir. July 22, 2011) was quite narrow: whether a single confirmed sighting of the endangered fairy shrimp in a tire rut on 143 acres of land in 2001 provides substantial evidence that the land was "occupied" by the shrimp in 1997, the year the Service listed the species.  The court determined that that the single 2001 observation alone is not substantial evidence because the Service "has not reasonably explained how that one, isolated observation demonstrates that plaintiffs' property was 'occupied' by the San Diego fairy shrimp in 1997 (the relevant statutory date) . . . ."

The court emphasized that the Service had based its listing decision on one observation of the shrimp at one location on the 143-acre property, and that the Service failed to observe any San Diego fairy shrimp in any of the six follow-up surveys of the property in 2001.  During the litigation, the Service pointed out that an unidentified species of fairy shrimp was observed in 2001 in a pond next to the tire rut, and it also suggested that wherever adult fairy shrimp are observed, one can assume that they left behind buried eggs, that buried eggs can lie dormant for years, and that a property with dormant, buried eggs is, by definition, "occupied" by the fairy shrimp.  However, the court rejected the Service's additional evidence and reasoning, not because it was insubstantial or unpersuasive, but because the Service had not relied on it when it designated the land as critical habitat based on its determination that the shrimp "occupied" the land in 1997.

The court acknowledged that the substantial evidence standard of review under the Administrative Procedure Act is deferential, but "deference is not abdication."  Moreover, while the Service is not required to conduct its own research to augment the "best scientific data available" under the Endangered Species Act, under the Administrative Procedure Act, the best scientific data must be enough to support the Service's designation of critical habitat. 

In the Court of Appeal's judgment, the best scientific data that the Service relied on for its decision to include the 143-acre property in the fairy shrimp's critical habitat simply fell short.

The decision leaves in place the Service's designation of 2,939 acres of land in Orange and San Diego Counties as critical habitat for the fairy shrimp.  And on remand, the Service may re-designate all or part of the 143-acre property as critical habitat.  But unless and until that happens, the owners may develop the land without the fear that they may adversely modify designated critical habitat for the fairy shrimp, an act that would be subject to numerous restrictions and requirements under the Endangered Species Act.

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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