344 F. Supp. 3d 355
D.C. Cir.2018Background
- Plaintiffs Otay Mesa own a San Diego property containing a one-acre vernal pool (a former stock pond) where endangered Riverside fairy shrimp were documented; FWS's 2012 Rule designated that pool plus ~56 adjacent acres (Subunit 5c) as critical habitat.
- FWS labeled Subunit 5c both as "occupied" critical habitat (finding the species "occupied" the geographic area) and alternatively as "unoccupied" critical habitat "essential for conservation," based primarily on mapping the species' primary constituent elements (PCEs).
- Otay Mesa challenged the designation under the Administrative Procedure Act (APA), arguing FWS (1) improperly defined the species' geographical area of occupancy by encircling pools and intervening land where shrimp do not and cannot exist, and (2) unlawfully designated unoccupied habitat without showing those areas are essential for conservation.
- The Court previously denied summary judgment without prejudice because the record lacked detail about how FWS delineated the watershed/occupied area and ordered supplemental briefing and a hearing.
- On renewed motions and further briefing, the Court found FWS’s methodology: mapping PCEs and drawing boundaries around areas where PCEs co-occurred, without hydrological or other analysis, and that approach governed both the occupied and alternative unoccupied designations.
- The Court concluded both the occupied and unoccupied designations were unlawful, vacated the designation of Subunit 5c, and remanded to FWS for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper meaning/application of "geographical area occupied by the species" under ESA §1532(5)(A) | "Occupied" should mean actual areas where shrimp live (the one-acre pool); FWS cannot treat intervening land where shrimp never occur as occupied. | "Occupied" may encompass surrounding land where PCEs exist; FWS permissibly used PCE mapping to delineate occupied area. | Court: "Occupied" ambiguous but FWS’s approach (encircling pools and intervening land where species cannot exist) is unreasonable and conflicts with statute and precedent; only the one-acre pool is occupied. |
| Use of PCE mapping alone to delineate occupied critical habitat | PCE presence alone cannot define the geographic area occupied; agency must first identify occupied area, then locate PCEs within it. | FWS reasonably relied on best available science and PCE mapping to draw boundaries without additional hydrological studies. | Court: FWS reversed statutory step-order; determining occupied area by PCE mapping expanded occupancy beyond where species exist and is arbitrary and capricious. |
| Alternative designation of the 56 acres as "unoccupied" but "essential" | FWS failed to show the surrounding land itself is "essential for the conservation of the species"; mere presence of PCEs is insufficient; needed analysis (e.g., hydrology) to show essentiality. | Given limited data, FWS permissibly relied on best available science (PCE presence) and need not conduct new studies to make essentiality finding. | Court: Statute requires a showing that unoccupied areas are themselves essential; FWS’s PCE-only approach failed to make the required essentiality determination—unlawful and arbitrary. |
| Remedy: vacatur or remand without vacatur | Plaintiffs sought vacatur of the designation for Subunit 5c. | Defendants urged remand or preservation pending further proceedings, citing deference and potential disruption. | Court: Vacatur and remand are appropriate because FWS committed substantive errors and vacatur will not unduly disrupt species protections (listing protections remain). |
Key Cases Cited
- Otay Mesa Prop., L.P. v. U.S. Dep't of Interior, 646 F.3d 914 (D.C. Cir. 2011) (court previously invalidated an FWS occupied-habitat designation and discussed limits of occupancy-based designations)
- Alaska Oil & Gas Ass'n v. Jewell, 815 F.3d 544 (9th Cir. 2016) (upheld PCE-based mapping for occupied habitat in context of a highly mobile species; Court distinguished its facts)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency statutory interpretations)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (APA arbitrary-and-capricious standard requiring reasoned explanation for agency action)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (courts should be particularly deferential in technical scientific determinations)