Wherefore art thou, o fairy shrimp?


Author:  Damien M. Schiff

Last week, Pacific Legal Foundation filed an amicus brief in the D.C. Circuit Court of Appeals in support of the appellants in Otay Mesa Property L.P. v. United States Department of Interior, in which the plaintiff property owners challenged, under the Endangered Species Act, the Service’s inclusion of their property within the critical habitat designation for the San Diego fairy shrimp.  PLF’s brief argues that the trial court erred by granting Chevron deference to the Service’s legal interpretations contained within the critical habitat designation.  Chevron deference is a principle derived from the Supreme Court’s decision in Chevron USA, Inc. v. Natural Resources Defense Center; the principle’s gist is that the courts are supposed to defer to reasonable agency interpretations of ambiguous statutory provisions. That deference doesn’t apply, however, when the agency interpretation does not carry the "force of law."  PLF’s brief contends that legal interpretations within critical habitat designations do not carry the force of law because they apply only to the particular species at issue, and do not bind the agency (or the general public) with respect to any other species’s designation.  In short, these interpretations do not have the force of law because they lack an essential aspect of law—that it be generally applicable.