The D.C. Circuit Court of Appeals has vacated the Fish and Wildlife Service's critical habitat designation for San Diego fairy shrimp on 143 acres of private property in eastern San Diego County (Otay Mesa Property L.P. v. U.S. Dep't of the Interior, 09-383).
The court said that "[s]everal factors taken together point to a lack of substantial evidence for the Fish and Wildlife Service’s determination that plaintiffs’ property was 'occupied' by the San Diego fairy shrimp in 1997":
"We emphasize that it is the combination of . . . factors that leads us to vacate the Fish and Wildlife Service’s designation of plaintiffs’ property. We rely on no single factor alone. On remand, moreover, [FWS] may be able to justify a re-designation. Our conclusion in this case is thus quite narrow: The current record is simply too thin to justify the action the service took."
[T]he potential existence of San Diego fairy shrimp outside plaintiffs’ property does not itself show that San Diego fairy shrimp occupy plaintiffs’ property, and occupation of plaintiffs’ property was the rationale supplied in the agency’s final rule. To be sure, the Endangered Species Act allows designation of critical habitat both for land occupied by the species in question and for 'specific areas outside the geographical area occupied by the species . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.' 16 U.S.C. § 1532(5)(A)(ii). But the [FWS] here designated plaintiffs’ land as critical habitat on the basis that it was occupied, not on the basis that it was a 'specific area outside the geographical area occupied by the species . . . essential for the conservation of the species.' See, e.g., 72 Fed. Reg. at 70,664 (“All areas designated as critical habitat for San Diego fairy shrimp are occupied . . . .”). If the [service] believes that plaintiffs’ land is critical habitat not because it is occupied, but rather because it is 'essential for the conservation of the species,' then it must say so in its agency decision and justify that determination. See SEC v. Chenery Corp., 318 U.S. 80, 88 (1943).
“We are pleased that the appellate court agreed that occupied should mean just that, and not whatever the agency argues it should mean,” said Nancie Marzulla, attorney for the landowners. “This land should never have been designated as critical habitat in the first place.”