United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2011 Decided July 22, 2011
No. 10-5204
OTAY MESA PROPERTY, L.P., ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
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.
2
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),
3
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.
4
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
5
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.
6
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
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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 live for only 30
days, but they can leave behind buried eggs that do not hatch
for months or even years. See 62 Fed. Reg. 4925, 4926 (Feb.
3, 1997). It appears that the Service might believe (i) that
wherever adult San Diego fairy shrimp are observed, one can
assume that the shrimp have left behind eggs and (ii) that a
property with dormant, buried eggs is by definition
“occupied” by the San Diego fairy shrimp. But if that’s the
theory behind the Fish and Wildlife Service’s determination
that plaintiffs’ property is occupied by San Diego fairy
shrimp, the theory cannot be found in the final rule. This
Court of course “may not supply a reasoned basis for the
agency’s action that the agency itself has not given.” Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983).
Third, the lone sighting in this case was in 2001, but the
relevant date for purposes of the designation is 1997. Critical
1
To buttress the single confirmed sighting of San Diego fairy
shrimp on plaintiffs’ land, the Fish and Wildlife Service cites a
separate January 23, 2001, observation of an unidentified species of
fairy shrimp in a small pond located next to the tire rut on the dirt
road. The larvae were identified as being of the same genus as San
Diego fairy shrimp, but they were only presumed to be of the same
species because of the pond’s proximity to the tire rut. On appeal,
the Service maintains that this presumption was reasonable because
San Diego fairy shrimp are the only species of the relevant genus
known to be in the area. But that explanation appears neither in the
report recording the surveyors’ presumption nor in the final rule.
See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983).
8
habitat includes “specific areas within the geographical area
occupied by the species, at the time it is listed.” 16 U.S.C.
§ 1532(5)(A) (emphasis added). The San Diego fairy shrimp
was listed as an endangered species in 1997. But the Service
has provided no evidence of sightings on plaintiffs’ land in
1997. Although the Service has tried to explain why a single
sighting in 2001 means that the San Diego fairy shrimp
occupied plaintiffs’ property as of 1997, that reasoning is at
best strained. See 72 Fed. Reg. at 70,666. For their part,
plaintiffs believe that the San Diego fairy shrimp may have
been brought onto plaintiffs’ property after 1997 by a truck
tire. 2
Separately, the Fish and Wildlife Service suggests that
plaintiffs’ property is part of a “vernal pool complex” that
supports the San Diego fairy shrimp population in the general
area. At oral argument, counsel for the Fish and Wildlife
Service stated that maps in the record show a stream running
from plaintiffs’ property to a pool not on plaintiffs’ land
where San Diego fairy shrimp have been observed (albeit,
again, only one time).
But the potential existence of San Diego fairy shrimp
outside plaintiffs’ property does not itself show that San
Diego fairy shrimp occupy plaintiffs’ property, and
2
Indeed, the one pool – basically a puddle in a tire rut on a dirt
road – in which the shrimp were observed in 2001 may not have
even existed in 1997. At oral argument, plaintiffs’ counsel
explained that “these roads are regularly maintained and graded
each year so that the border patrol can use them daily to . . . get
aliens crossing the border, and there are literally hundreds of aliens
coming across this property daily, [and] that sometime between
1997 and 2001, this rut was created.” Tr. of Oral Arg. at 20. On
remand to the Fish and Wildlife Service, if plaintiffs raise this
argument, the Service will need to address it.
9
occupation of plaintiffs’ property was the rationale supplied in
the agency’s final rule. To be sure, the Endangered Species
Act allows designation of critical habitat both for land
occupied by the species in question and for “specific areas
outside the geographical area occupied by the 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)(ii). But the Fish and Wildlife Service here
designated plaintiffs’ land as critical habitat on the basis that
it was occupied, not on the basis that it was a “specific area[]
outside the geographical area occupied by the species . . .
essential for the conservation of the species.” See, e.g., 72
Fed. Reg. at 70,664 (“All areas designated as critical habitat
for San Diego fairy shrimp are occupied . . . .”). If the Fish
and Wildlife Service believes that plaintiffs’ land is critical
habitat not because it is occupied, but rather because it is
“essential for the conservation of the species,” then it must
say so in its agency decision and justify that determination.
See SEC v. Chenery Corp., 318 U.S. 80, 88 (1943).
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
10
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.
We emphasize that it is the combination of all the above
factors that leads us to vacate the Fish and Wildlife Service’s
designation of plaintiffs’ property. We rely on no single
factor alone. On remand, moreover, the Fish and Wildlife
Service may be able to justify a re-designation. Our
conclusion in this case is thus quite narrow: The current
record is simply too thin to justify the action the Service took.
* * *
We reverse the District Court’s grant of summary
judgment to the Fish and Wildlife Service. The District Court
is directed to vacate the Fish and Wildlife Service’s decision
designating plaintiffs’ property as critical habitat for the San
Diego fairy shrimp and to remand the matter to the agency.
So ordered.