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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Another Center for Biological Diversity lawsuit, with an unusual settlement agreement, leads to new regulations governing pesticides | Main| Ninth Circuit defers to FWS analysis of project impacts to vernal pool species' critical habitat »

Court defers to FWS, refuses to undo critical habitat designation for fairy shrimp in Otay Mesa, even though evidence was "distinctly thin."

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Otay Mesa Property v. U.S. Department of the Interior, Civil Action No. 08-383(RMC), --- F.Supp.2d ----, 2010 WL 2134295 (D.D.C., May 27, 2010).  U.S. District Judge Rosemary Collyer.
     The owners of 143 acres of property on Otay Mesa in San Diego County, California, sue the U.S. Fish and Wildlife Service (“FWS”) to cancel its designation of this portion of their property as critical habitat for the endangered San Diego fairy shrimp under the Endangered Species Act, 16 U.S.C. § 1531 et seq. The Court now considers the parties' cross-motions for summary judgment.
     The government's evidence that the San Diego fairy shrimp actually “occupied” the property at the time it was designated is distinctly thin. Plaintiffs argue that without such proof, no habitat can be designated as “critical.” Having failed to designate critical habitat when it listed the San Diego fairy shrimp as endangered, FWS did so years later after being reminded of its obligation by a lawsuit. The passage of time necessarily forced FWS to assume that what it discovered later had existed earlier. Because the San Diego fairy shrimp live in vernal pools on land and move rarely, it cannot be said that this assumption was irrational. In addition, while the Court may not have reached the same conclusions as the agency on how to perform the economic analysis of critical habitat designation, that is not what is required. Reviewing the final rule at issue, the Court concludes that FWS is entitled to Chevron deference. Summary judgment will be entered for the Defendants.
     FWS fully explained the analyses that underlie the critical habitat designation for the San Diego fairy shrimp. It need do no more. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984)(quoting United States v. Shimer, 367 U.S. 374, 382-383 (1961)) (“If the agency's choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”)

The presence of vernal pool species, including fairy shrimp, proved particularly controversial in Otay mesa, where it stopped a school construction project.  See Sign On San Diego.  But in the world of fairy shrimp, this fact pattern is common.  According to FWS recovery planning documents, "Of the 53 midvalley fairy shrimp occurrences in the California Natural Diversity Data Base (2003), roughly 19 (36 percent) are directly threatened by proposed development projects."  Fairy Shrimp photo by Dwight Harvey from FWS.