Court denies effort to transfer fairy shrimp critical habitat litigation to California
Otay Mesa Property v. U.S. Dept. of the Interior, --- F.Supp.2d ----, Civil Action No. 08-383(RMC), 2008 WL 4767998 (D.D.C., Nov. 3, 2008.) Rosemary M. Collyer, District Judge.
EXCERPT: This case involves a challenge to a final critical habitat determination by the United States Fish and Wildlife Service for the San Diego fairy shrimp (Branchinecta sandiegonensis ), an endangered species which inhabits the waters in and around San Diego County, California. The Federal Defendants move to transfer the case to the Southern District of California, asserting that the interests of justice will be served best by transferring this action. In support of their motion, the Federal Defendants observe that the agency that substantially developed the final critical habitat determination at issue is located within the Southern District of California, two of the Plaintiffs reside in the Southern District of California, and all five of the critical habitat units designated for the San Diego fairy shrimp are located in southern California, four of which are located in San Diego County. Despite the location of the property at issue, the Court finds that the arguments in favor of transfer do not outweigh the deference afforded to the Plaintiffs' choice of forum, and therefore will deny the Federal Defendants' motion to transfer this case to the United States District Court for the Southern District of California.
The San Diego fairy shrimp, a tiny freshwater species whose decline points to a loss of unique California wetlands, was added to the Federal endangered species list in 1997 by the U.S. Fish and Wildlife Service. 62 Fed.Reg. 4925 (Feb. 3, 1997). Most of the species' remaining habitat is on Federal land or in areas involved in conservation planning efforts. Specifically, these shrimp live in vernal pools, which once dotted most of California's Central Valley and coastal southern California. Vernal pools are seasonal wetlands that fill with water during fall and winter rains. They are home to many plants and animals that, in turn, form a valuable part of the food chain for a wide array of animals, including birds of prey, shorebirds, migratory waterfowl, frogs, toads, salamanders, and pollinating insects. In 2000, the FWS proposedand eventually designatedapproximately 4,000 acres in Orange and San Diego counties in California as critical habitat for the species. 65 Fed.Reg. 63438 (Oct. 23, 2000). Plaintiffs in this case, Otay Mesa Property, L.P., Rancho Vista Del Mar, and Otay International, LLC, are owners of unimproved land in the Otay Mesa area of San Diego County, California. The 2000 final determination did not include any of Plaintiffs' land. Photo above of San Diego's vernal pools from blogger urbp240_2007