Whither have you gone, dear fairy shrimp?


Author:  Damien M. Schiff

The D.C. Circuit Court of Appeals ruled today in Otay Mesa Properties v. United States Fish & Wildlife Service that the Service's designation of the plaintiff's San Diego border property as occupied critical habitat for the San Diego fairy shrimp was arbitrary and capricious.  The court ruled that the only evidence supporting the designation—one observation in 2001 in a tire rut—was not "substantial evidence" to support the necessary statutory finding that the property was occupied by the shrimp in 1997 (the date of the shrimp's listing).  Here's a snippet from the court's analysis:

The Fish and Wildlife Service also contends that the evidence here suffices because the Endangered Species Act requires the Fish and Wildlife Service to make critical habitat designations "on the basis of the best scientific data available." 16 U.S.C. § 1533(b)(2). The Fish and Wildlife Service argues, correctly, that it has no affirmative obligation to conduct its own research to supplement existing data. See Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008). But the absence of a requirement for the Service to collect more data on its own is not the same as an authorization to act without data to support its conclusions, even acknowledging the deference due to agency expertise.

Here, the Fish and Wildlife Service relies on eight surveys of plaintiffs’ property. Seven of those surveys found no confirmed San Diego fairy shrimp on the property. One survey in 2001 resulted in identification of the species’ presence in one location. The "best scientific data available" fails to demonstrate, without further explanation, that plaintiffs’ property was "occupied" by San Diego fairy shrimp in 1997.

It's a good decision because it shows that "some evidence" does not necessarily equal "substantial evidence" or qualify as the "best available evidence."

PLF filed an amicus brief in the case focused on what type of deference the Service should receive for its critical habitat findings. The court avoided that question by holding that, whatever level of deference one might apply, the Service's designation here was faulty.