Otay Mesa Prop. v. United States Dep't of The Interior

• Decision Date: 22 July 2011
• Docket Number: No. 10–5204.,10–5204.
• Parties: OTAY MESA PROPERTY, L.P., et al., Appellantsv.UNITED STATES DEPARTMENT OF the INTERIOR, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

646 F.3d 914

OTAY MESA PROPERTY, L.P., et al., Appellants

v.UNITED STATES DEPARTMENT OF the INTERIOR, et al., Appellees.

No. 10–5204.

United States Court of Appeals, District of Columbia Circuit.

Argued April 12, 2011.Decided July 22, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–00383).Roger J. Marzulla argued the cause for appellants. With him on the briefs was Nancie G. Marzulla.M. Reed Hopper and Damien M. Schiff were on the brief for amicus curiae Pacific Legal Foundation in support of appellants.Maggie B. Smith, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Ellen J. Durkee and Meredith Flax, Attorneys. Kathryn E. Kovacs, Attorney, and R. Craig Lawrence, Assistant U.S. Attorney, entered appearances.William J. Snape, III, argued the cause for intervenor Center for Biological Diversity. With him on the brief was Jonathan C. Evans.Before: ROGERS, GRIFFITH, and KAVANAUGH, Circuit Judges.Opinion for the Court filed by Circuit Judge KAVANAUGH.KAVANAUGH, Circuit Judge:

This case concerns the San Diego fairy shrimp, an aquatic animal found in southern California. The San Diego fairy shrimp is the size of an ant and has a life span of about 30 days. In 1997, the Fish and Wildlife Service listed the San Diego fairy shrimp as an endangered species under the Endangered Species Act. That Act authorizes the Fish and Wildlife Service to designate property as “critical habitat” for the endangered species if the property was “occupied” by the species when the species was listed as endangered (and if certain other requirements are met).

Plaintiffs are companies that own land along the California–Mexico border. In 2007, acting pursuant to the Endangered Species Act, the Fish and Wildlife Service designated 143 acres of plaintiffs' property as critical habitat for the San Diego fairy shrimp. The Fish and Wildlife Service based that critical habitat designation on a single 2001 sighting of four ant-sized San Diego fairy shrimp on the 143 acres of plaintiffs' property. The four San Diego fairy shrimp were observed in a tire rut on a dirt road on plaintiffs' property. Because the Fish and Wildlife Service has not reasonably explained how that one, isolated observation demonstrates that plaintiffs' property was “occupied” by the San Diego fairy shrimp in 1997 (the relevant statutory date), we reverse the judgment of the District Court and remand. On remand, the District Court should vacate the designation of plaintiffs' property as critical habitat for the San Diego fairy shrimp and remand the matter to the agency.

I

The landmark Endangered Species Act of 1973 authorizes the Department of the Interior to take measures to protect species at risk of extinction. The Fish and Wildlife Service, an agency within the Department, implements this important Act, as do other agencies. The Fish and Wildlife Service may list species at risk of extinction as “threatened” or “endangered.” 16 U.S.C. § 1533. Once a species is so designated, it may be unlawful for anyone to “take” (i.e., kill) members of that species. Id. § 1538(a)(1)(B).

In addition, the Fish and Wildlife Service may designate land, including private property, as “critical habitat” for a threatened or endangered species. The Act states:

The term “critical habitat” for a threatened or endangered species means—

(i) the specific areas within the geographical area occupied by the species, at the time it is listed [as a threatened or endangered species], on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is listed [as a threatened or endangered 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) (emphases added).

Designation of private property as critical habitat can impose significant costs on landowners because federal agencies may not authorize, fund, or carry out actions that are likely to “result in the destruction or adverse modification” of critical habitat. Id. § 1536(a)(2).

Plaintiffs Otay Mesa Property, L.P., Rancho Vista Del Mar, and Otay International, LLC, own property along the California–Mexico border. In 2007, the Fish and Wildlife Service designated 143 acres of plaintiffs' property as critical habitat for the San Diego fairy shrimp.

San Diego fairy shrimp are tiny aquatic animals—about the size of ants. They live in “vernal pools” in southern California and northwestern Mexico. Those pools are typically large puddles or small seasonal ponds that form during the winter and then dry out as summer approaches. The life span of San Diego fairy shrimp is only about 30 days. If the shrimp lay eggs, those eggs can lie dormant in the bottom of a dry pool for months or years. When the pool re-fills again, the eggs can hatch.

In 1997, the Fish and Wildlife Service listed San Diego fairy shrimp as an endangered species. 62 Fed.Reg. 4925 (Feb. 3, 1997). But the Service did not designate plaintiffs' property as critical habitat at that time. In 2001, an environmental consulting company surveyed a 3300–acre area along the California–Mexico border, searching for fairy shrimp. The surveyed area included plaintiffs' property. The company conducted eight surveys between January and May 2001, when vernal pools are normally full and San Diego fairy shrimp can be found. Those eight surveys produced one confirmed observation of San Diego fairy shrimp on plaintiffs' property: On February 7, 2001, surveyors observed four adult San Diego fairy shrimp in a tire rut on a dirt road.

The Fish and Wildlife Service became aware of this report and, in 2003, included plaintiffs' property in its proposed critical habitat designation for San Diego fairy shrimp. During the ensuing notice and comment period, plaintiffs submitted letters objecting to the designation of their property. The Fish and Wildlife Service rejected those comments and in 2007 published a final rule designating as critical habitat 391 acres of southeast Otay Mesa, including plaintiffs' property, on the justification that the area was “occupied by the [San Diego fairy shrimp] at the time of listing [as an endangered species in 1997],” and that “the species continues to occur” in the designated area. 72 Fed.Reg. 70,648, 70,674 (Dec. 12, 2007).

In 2008, plaintiffs sued to challenge the designation of their property as critical habitat. The District Court granted summary judgment to the Fish and Wildlife Service, although the court described the Fish and Wildlife Service's support for its conclusion as “distinctly thin.” Otay Mesa Property L.P. v. Dep't of Interior, 714 F.Supp.2d 73, 75 (D.D.C.2010). We review the District Court's decision de novo. See Hendricks v. Geithner, 568 F.3d 1008, 1011 (D.C.Cir.2009). We review the Fish and Wildlife Service's underlying decision pursuant to the standards set forth in the Administrative Procedure Act. See 5 U.S.C. § 706. The question here is whether substantial evidence supports the Fish and Wildlife Service's determination that plaintiffs' land was occupied by the San Diego fairy shrimp at the time of listing in 1997. Substantial evidence is a deferential standard. But deference is not abdication. This case illustrates the significance of that distinction.

II

According to the Fish and Wildlife Service, plaintiffs' property meets the statutory definition of critical habitat because the property was “occupied” by the San Diego fairy shrimp in 1997—the year the San Diego fairy shrimp was listed as an endangered species. 16 U.S.C. § 1532(5)(A)(i).

Several 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.

First, surveyors identified San Diego fairy shrimp on plaintiffs' property only in one location. On February 7, 2001, surveyors found four San Diego fairy shrimp in a tire rut on a dirt road on plaintiffs' land. That is the sole confirmed observation of San Diego fairy shrimp on plaintiffs' property.

Second, after the one survey that found San Diego fairy shrimp on plaintiffs' property, surveyors searched plaintiffs' property six more times in 2001 for San Diego fairy shrimp. Having once found San Diego fairy shrimp, it might have been thought that surveyors would again find San Diego fairy shrimp on plaintiffs' property. That did not happen. The failure to observe any San Diego fairy shrimp in later surveys of plaintiffs' property is in tension with the suggestion that the property was occupied by the San Diego fairy shrimp in 2001. It is likewise in tension with the agency's conclusion that the property was occupied in 1997 and the “species continue[d] to occur” in 2007. 72 Fed.Reg. 70,648, 70,674 (Dec. 12, 2007).¹

On appeal to this Court, the Fish and Wildlife Service explains that San Diego fairy shrimp may...