Judge Tosses Critical Habitat Designation for Fairy Shrimp

WASHINGTON (CN) - A California landowner scored a major court victory Wednesday when a federal judge ruled that the government wrongly designated 56 acres of its land as critical habitat for the Riverside fairy shrimp.

Although the endangered shrimp only occupy a one-acre stock pond on the land, a 2012 Fish and Wildlife Service rule designated all of the land in between the vernal pools where the tiny freshwater crustaceans live as "occupied" by the shrimp.

This rule led the Fish and Wildlife Service to determine that the shrimp occupied the entire 56-acre property owned by plaintiffs  Otay Mesa Property, L.P., Rancho Vista Del Mar, and Otay International, LLC in San Diego County, California.

U.S. District Judge Ketanji Brown Jackson, however, said the agency's expansive  interpretation of the term "occupied" violates the terms of the Endangered Species Act.

"There is nothing about the ESA’s use of 'occupied,' or the plain meaning of that term, or, quite frankly, common sense, that permits this result," the 43-page ruling says, abbreviating the Endangered Species Act.

Otay first sued the Department of the Interior and Fish and Wildlife Service back in February 2013, along with several officials from the agencies.

Jackson determined that designating geographical areas where no shrimp have been found, but which are located next to areas where the shrimp live, also runs counter to D.C. Circuit precedent in Otay Mesa Property L.P. v. U.S. Department of Interior.

In that case, the appeals court found that Fish and Wildlife Service improperly designated 143 acres of land as critical habitat, when four years after listing a different species of fairy shrimp as endangered, only one sighting of four shrimp in a tire rut on the property had occurred.

Jackson's ruling says the Department of the Interior offered little explanation about how Fish and Wildlife Service determined that the fairy shrimp occupied all 56 acres, when the shrimp had only been found in the stock pond.

According to the ruling, the agency simply circled entire geographic areas on a map surrounding "primary constituent elements" - or the physical and biological features deemed essential for a species' survival and recovery - that the agency identified for the shrimp.

"If this is, in fact, how the FWS determined that the Riverside fairy shrimp species occupies all 56 acres of land surrounding the stock pond, the agency has improperly ignored the process the ESA designates for making an occupied critical habitat determination," the ruling said, abbreviating Fish and Wildlife Service.

Jackson said the methodology also violates the Administrative Procedure Act because the agency failed to conduct further analysis about whether preserving the additional land adjacent to the stock pond would be essential to the shrimp's survival.

Otay attorney Nancie Marzulla said her client is pleased with the ruling, but noted in a phone interview that the ruling has broader implications.

"Frankly this is a big victory not only for our client but for San Diego county," Marzulla said, adding that voters in San Diego County had previously approved construction of a recycling center and landfill on Otay's land.

"The only thing that prevented its construction was this designation," Marzulla said.

According to Marzulla, her client offered to settle with the Justice Department, but that offer was rejected.

"This landowner was more than willing to cooperate with Fish and Wildlife Service. He was rebuffed. He was sort of forced into litigating this," Marzulla said.

The Department of Justice did not respond to an email seeking comment on the ruling, and whether it plans to appeal.

Marzulla noted that Jackson remanded the matter to Fish and Wildlife Service for further rulemaking, and said that while the government technically could appeal the opinion, she hopes it won't.

"I think it would be in everyone's best interest if we move forward and try to put this behind us and then try to work together to benefit everyone," Marzulla said. "That I think would be the best take away from this."

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