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Otay Mesa Property, L.P. v. United States Department of the Interior

ELR Citation: 41 ELR 20249
Nos. No. 10-5204, (D.C. Cir., 07/22/2011)

The D.C. Circuit held that a single sighting of a protected species is insufficient to render a property "occupied" for purposes of designating critical habitat under the ESA. In 2007, the FWS designated 143 acres of plaintiffs' property as critical habitat for the San Diego fairy shrimp under the ESA. The FWS based that critical habitat designation on a single 2001 sighting of four, ant-sized fairy shrimp in a tire rut on a dirt road on the property. The FWS argued that the 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 species was listed as endangered. But FWS failed to reasonably explain how one, isolated observation demonstrates that plaintiffs' property was occupied by the fairy shrimp. The record is simply too thin to justify the action the FWS took. On remand, the lower court should vacate the designation of plaintiffs' property as critical habitat for the San Diego fairy shrimp and remand the matter to the agency.