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

United States District Court, D. Columbia

November 13, 2015

OTAY MESA PROPERTY, L.P., et al., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., DEFENDANTS

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[Copyrighted Material Omitted]

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          For OTAY MESA PROPERTY, L.P., a California limited partnership, RANCHO VISTA DEL MAR, a California corporation, OTAY INTERNATIONAL, LLC, a California limited liability company, Plaintiffs: Roger Joseph Marzulla, Nancie G. Marzulla, MARZULLA LAW, LLC, Washington, DC.

         For UNITED STATES DEPARTMENT OF THE INTERIOR, UNITED STATES FISH & WILDLIFE SERVICE, RACHEL JACOBSON, in her official capacity as Acting Assistant Secretary for Fish, Wildlife & Parks, Department of the Interior, DANIEL M. ASHE, in his official capacity as Director, United States Fish and Wildlife Service, SALLY JEWELL, in her official capacity as Secretary of the Department of the Interior, Defendants: Kristen Byrnes Floom, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

         For PACIFIC LEGAL FOUNDATION, Amicus: Theodore Hadzi-Antich, LEAD ATTORNEY, PACIFIC LEGAL FOUNDATION, Sacramento, CA.

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         MEMORANDUM OPINION

         KETANJI BROWN JACKSON, United States District Judge.

         Plaintiffs Otay Mesa Property, L.P., Rancho Vista Del Mar, and Otay International, LLC (collectively " Otay Mesa" or " Plaintiffs" ) own land that is located in San Diego County, California, near the border between the United States and Mexico. In 2012, the United States Fish and Wildlife Service (" the FWS" ) promulgated a rule that designates 57 acres of Otay Mesa's land as a " critical habit" for the endangered Riverside fairy shrimp. See 50 C.F.R. § 17.95. Otay Mesa has plans to build a recycling facility and landfill on a portion of the designated property, and it has filed the instant action against the U.S. Department of the Interior and its Secretary, the FWS and its Director, and

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the Assistant Secretary of the Interior for Fish, Wildlife, and Parks (collectively " Defendants" ), seeking a court order that declares unlawful and sets aside the portion of the FWS rule that designates the property as a critical habitat. Otay Mesa's one-count complaint asserts that the FWS's critical habitat determination, which will likely result in various restrictions on Plaintiffs' use of the land, violates the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701-706, because it is arbitrary, capricious, and contrary to the provisions of the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531-1544, and the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321-4347.

         Before this Court at present are the parties' cross-motions for summary judgment. Otay Mesa maintains that it is entitled to judgment as a matter of law because the record clearly demonstrates that the process that the FWS used to determine whether or not Otay Mesa's property should be declared a critical habit for the Riverside fairy shrimp was flawed, and thus the agency reached the wrong conclusion. Specifically, Otay Mesa maintains that the FWS (1) wrongly designated the property as a critical habitat even though it does not qualify as such under the ESA; (2) conducted a faulty economic analysis with respect to the critical habitat designation; (3) improperly neglected to perform a NEPA analysis of possible environmental impacts of the critical habitat designation; and (4) failed to articulate its reasons for determining that preservation of all 57 acres is essential to conservation of the species. (Pls.' Mem. in Supp. of Summ. J. (" Pls.' Mem." ), ECF No. 9-1, at 9-10, 13-14.)[1] Defendants assert that they are entitled to summary judgment because Otay Mesa does not have standing to sue (Defs.' Combined Opp'n to Pls.' Mot. for Summ. J. & Mem. in Supp. of Cross-Mot. for Summ. J. (" Defs.' Mem." ), ECF No. 14-1, at 10), and with respect to the merits of Otay Mesa's APA claim, Defendants argue that the FWS's critical habitat determination was not arbitrary or capricious in violation of the APA because the agency conducted a proper economic analysis, reasonably determined that a NEPA analysis was not warranted, and has articulated rational and well-supported reasons for concluding that Otay Mesa's property qualifies a critical habitat for ESA purposes ( id. at 10-11).

         On September 30, 2015, this Court issued an order that DENIED both parties' cross motions for summary judgment WITHOUT PREJUDICE. (ECF No. 29.) This Memorandum Opinion explains the reasons for that order. In short, this Court finds that Otay Mesa has standing to bring this action and that the FWS did not act arbitrarily or capriciously with respect to its economic analysis and NEPA determination. In addition, this Court concludes that the FWS made a rational determination that the watershed area surrounding the pond on Otay Mesa's property where the Riverside fairy shrimp live is essential to the conservation of the species, and thus, at least some portion of the land at issue qualifies as a critical habitat under the ESA. However, this Court cannot determine on the record before it whether the FWS has acted arbitrarily in concluding that 56 acres of land surrounding the one-acre pond is, in fact, watershed, because the portion of the administrative record that was submitted to the Court does not explain how the FWS determined that all of the geographic area that it designated

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as critical habitat qualifies as such. Consequently, and as set forth in the order this Court previously issued, each side will have an opportunity to augment the Administrative Record Appendix and to file supplemental briefs that are limited to this factual issue.

         I. BACKGROUND

         A. Statutory And Regulatory Framework

         1. The FWS's Role In Implementing The Endangered Species Act

         Congress enacted the Endangered Species Act in 1973 with the aim of conserving and protecting endangered and threatened species and the ecosystems on which those species depend. See 16 U.S.C. § 1531(b). A species is " endangered" under the ESA if it is " in danger of extinction throughout all or a significant portion of its range[,]" and a species is " threatened" under the ESA if it is " likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(6), (20). The Department of the Interior administers the ESA for non-marine species and has delegated to the Fish and Wildlife Service (an agency within the Interior Department) the authority to list such species as " endangered" or " threatened" through rulemaking. See 50 C.F.R. § 402.01 (2015); see also Bangor Hydro-Elec. Co. v. FERC, 78 F.3d 659, 661, 316 U.S.App.D.C. 298 (D.C. Cir. 1996) (noting that the FWS is " an arm of the Department of Interior" ).[2]

         Species that the FWS lists as endangered or threatened receive certain protections under Federal, State, and local law, which the FWS refers to as " baseline" protections. For example, Section 7 of the ESA requires federal agencies to consult with the FWS to " insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered or threatened species[.]" 16 U.S.C. § 1536(a)(2). Section 9 of the ESA prohibits the " take" of endangered wildlife, where " take" means to " harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § § 1532(19), 1538(a)(1); 50 C.F.R. § 17.21(c). And Section 10(a)(1)(B) authorizes landowners and local governments who desire to engage in activities or projects that may incidentally result in the take of a protected species to apply for a permit by demonstrating, among other things, that " the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking [and that] the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild[.]" 16 U.S.C. § 1539(a)(1)(B), (2)(A)--(B). Similar protections for endangered and threatened species exist on the state level; for example, California requires state government entities that are responsible for project approval under the California Environmental

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Quality Act to consider the environmental effects of certain proposed projects. See Cal. Pub. Res. Code § § 21000-21189.3; see also id. § 21002.1.

         Pursuant to the ESA, the FWS is required to employ the best available scientific and commercial data when it makes the initial determination regarding whether or not a particular species should be listed as endangered or threatened. See 16 U.S.C. § 1533(a)--(b). Moreover, the agency's decision to list a species as fitting within one of these protected categories " must be made without reference to economic costs or private property impacts." Safari Club Int'l v. Jewell, 960 F.Supp.2d 17, 30 (D.D.C. 2013) (emphasis added) (internal quotation marks and citations omitted); see also 16 U.S.C. § 1533(b)(1)(A) (stating that listing determinations must be made " solely on the basis of the best scientific and commercial data available" ). The FWS is also required to utilize standard administrative rulemaking processes when it makes the listing decision: it must provide public notice of its proposed listing determination through the issuance of a proposed rule, and thereafter receive public comment, followed by the promulgation of a final rule that lists the species. 16 U.S.C. § 1533(b)(5)-(6).

         Notably, the ESA specifically states that, " to the maximum extent prudent and determinable[,]" the FWS should publish a rule that designates the " critical habit" for a listed species at the same time the agency publishes the final rule that lists the species as endangered or threatened. Id. § 1533(a)(3)(A). In practice, the FWS often " put[s] off" this critical habitat designation. See N.M. Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1283 (10th Cir. 2001) (explaining that, because the FWS has long believed that critical habitat designations " are unhelpful, duplicative and unnecessary[,]" the agency often fails to makes such designation " until forced to do so by court order" (citation omitted)). However, when the FWS does undertake to engage in the critical habitat assessment, its exercise of discretion regarding the designation of an area as a critical habitat for a listed species is governed by a specific set of statutory and regulatory criteria.

         First, the ESA defines a " critical habitat" as:

(i) the specific areas within the geographical area occupied by the species, at the time it is listed [as endangered or threatened under the statute], 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 . . ., upon a determination by the Secretary that such areas are essential for the conservation of the species.

16 U.S.C. § 1532(5)(A). Consistent with this statutory definition, in order to reach the conclusion that a particular geographic area fulfills this definition and is thus a critical habitat for ESA purposes, the FWS must determine the " primary constituent elements" or " PCEs" of the habitat, which are " those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection." 50 C.F.R. § 424.12 (2015). In addition, as with the decision to list a species in the first place, the agency must make the critical habitat determination by relying on the best scientific data available. See 16 U.S.C. § 1533(b)(2).

         However, and significantly for present purposes, in stark contrast to the ESA's

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prohibition against considering the economic impact of a listing determination, when the FWS decides whether or not to designate a geographical area as a critical habitat for a listed species, the agency must " tak[e] into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat." 16 U.S.C. § 1533(b)(2). Furthermore, except when extinction is at issue, the agency has discretion both to (1) exclude any area from a critical habitat designation based on a determination " that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat," id., and (2) determine the weight to be afforded to various exclusion factors when deciding the scope of a critical habitat designation, see id.

         Finally, it is important to acknowledge (as a historical matter) that the FWS has actually employed different methodologies to assess the economic impact of a critical habitat determination over the years. Prior to 2002, the FWS utilized the " baseline" or " incremental" approach, which requires the agency to consider only those impacts " that would not otherwise occur without the designation" of the critical habitat. Endangered and Threatened Wildlife and Plants; Revisions to the Regulations for Impact Analyses of Critical Habitat (" 2012 Critical Habitat Revisions" ), 77 Fed.Reg. 51,503, 51,506 (Aug. 24, 2012). " Under [the baseline] approach, any economic impacts of protecting the [species] that will occur regardless of the critical habitat designation--in particular, the burdens imposed by listing the [species in and of itself]--are treated as part of the regulatory 'baseline' and are not factored into the economic analysis of the effects of the critical habitat designation." Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1172 (9th Cir. 2010). So, for example, the various costs that arise from the mere fact that a species has been labeled endangered or threatened-- e.g., the costs associated with engaging in Section 7 consultations to ensure that federal actions will not likely jeopardize the species' continued existence, and the costs arising from compliance with Section 9's prohibition against " taking" the species, and the costs of complying with state and local laws that protect the species--are considered part of the baseline and are excluded from the calculation of costs. (Final Rule: Revised Critical Habitat for the Riverside Fairy Shrimp (Dec. 4, 2012) (" 2012 Final Rule" ), Admin. R. App., ECF Nos. 7-1 & 7-2 (" AR" ) 045115.) What is left are the incremental costs attributable only to the designation of critical habitat; under the baseline methodology, only such incremental costs are counted when the impact of the critical habitat designation is assessed. ( Cf. Econ. Analysis of Critical Habitat Designation for Riverside Fairy Shrimp (Aug. 30, 2012) (" Econ. Analysis" ), AR 050659 (" Incremental costs are limited to administrative efforts of new and reinitiated consultations to consider adverse modification of critical habitat . . ., administrative costs of complying with [state law], and time delays resulting from both processes." ).)

         Between 2002 and 2008, the FWS eschewed the baseline approach and conducted its critical habitat economic analyses using the " co-extensive" methodology. See 2012 Critical Habitat Revisions, 77 Fed.Reg. at 51507. Pursuant to this methodology, the FWS considered " all of the economic impacts of a critical habitat designation, regardless of whether those impacts are attributable co-extensively to other causes." N.M. Cattlegrowers Ass'n, 248 F.3d at 1285. Under this approach, the aforementioned costs of conducting Section 7 consultations, adhering to Section 9's prohibition against taking protected species,

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and complying with state laws would be included in the calculation of the cost of the critical habitat designation, along with the additional incremental costs that are attributable to designating the critical habitat. Thus, this methodology is " co-extensive" -- i.e., it includes costs attributable both to listing the species as endangered or threatened and to designating its critical habitat--and this approach will, at a minimum, equal (and will almost always exceed) the cost calculation under the baseline approach.

         In 2008, the FWS reverted back to using the baseline methodology when conducting economic analyses with respect to the designation of critical habitats. 2012 Critical Habitat Revisions, 77 Fed.Reg. at 51506-08. The agency has apparently continued to use that approach to date.

         2. The Preparation Of Environmental Impact Statements Under The National Environmental Policy Act

         NEPA is, in essence, a " procedural statute" that is designed to ensure that federal agencies make fully informed and well-considered decisions. New York v. Nuclear Regulatory Comm'n, 681 F.3d 471, 476, 401 U.S.App.D.C. 140 (D.C. Cir. 2012) (quoting Vermont Yankee Nuclear Power Corp. v. Nat'l Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (internal quotation marks omitted)). To this end, before any federal agency undertakes a " major Federal action[] significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), NEPA requires the agency to evaluate the environmental consequences of that proposed action. The required evaluation involves preparing a detailed environmental impact statement (" EIS" ) that describes the impact of the proposed action on the environment and any alternatives to the proposed action, which the agency must publish for public review and comment. Id. [3] The agency may also opt to prepare a less-detailed environmental assessment in order to assist it in determining whether a particular agency action will have a significant effect on the human environment such that an EIS is required--an environmental assessment is a " concise public document" that briefly provides evidence and analysis to assist an agency in deciding whether the action in question requires an EIS. See 40 C.F.R. § 1501.4(a)-(c); id. § 1508.9 (defining an environmental assessment). Based on the information contained in the assessment, the agency may proceed to prepare an EIS; alternatively, the agency may conclude that an EIS is not warranted. 40 C.F.R. § 1501.4(e).

         The NEPA statute does not contain a private right of action against the government; rather, a plaintiff alleging a NEPA violation " must rest its claim for judicial review on the Administrative Procedure Act." Public Citizen v. U.S. Trade Representative, 5 F.3d 549, 551, 303 U.S.App.D.C. 297 (D.C. Cir. 1993). In the context of such actions, the FWS has taken the position that " outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA in connection with designating critical habitat under the Act." (2012 Final

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Rule, AR 045141 (citing Douglas Cty. v. Babbitt, 48 F.3d 1495 (9th Cir. 1994)).)[4]

         B. Background Facts Underlying Otay Mesa's Complaint

         1. Riverside Fairy Shrimp

         The Riverside fairy shrimp is a small freshwater crustacean--generally measuring 0.56 to 0.92 inches long--that was identified as a new species in 1985 and listed as " endangered" on August 3, 1993. ( See Final Rule: Determination of Endangered Status for Three Vernal Pool Plants and the Riverside Fairy Shrimp (Aug. 3, 1993) (" Listing Decision" ), AR 000695; Proposed Rule: Revised Critical Habitat for the Riverside Fairy Shrimp (June 1, 2011) (" 2011 Proposed Rule" ), AR 055615.) This shrimp is a filter feeder; its diet consists mostly of algae, bacteria, and other microorganisms. (2012 Final Rule, AR 045094.) Moreover, Riverside fairy shrimp " are relatively sedentary[,]" and the species typically does not actively migrate. ( Id. 045098.)[5]

         Notably, in order to grow and reproduce, Riverside fairy shrimp rely upon " vernal pool" hydrology-- i.e., pools that fill with water during fall and winter rains and evaporate in the spring. ( Id. 045092-94.) Generally speaking, this species of shrimp mates and reproduces when the vernal pool is full, and the offspring lay dormant--encased in hard cysts at the bottom of the pool--when the pool is dry. The lifecycle of a Riverside fairy shrimp begins when a vernal pool fills with water and the shrimp mature, mate, and reproduce. The female shrimp carry the fertilized eggs in a pouch, but before the embryos reach full maturity, they stop developing and enter a dormant state. ( Id. 045094.) A hard protective coating develops, and the embryos turn into cysts that eventually fall to the bottom of the vernal pool. ( Id. )

         " By the time the pool dries out, the numbers of dormant cysts within each pool basin can reach tens of thousands to millions, depending on pool size, volume, and depth[.]" (Final Rule: Designation of Critical Habitat for the Riverside Fairy Shrimp (2005) (" 2005 Final Rule" ), AR 019548.) The protective coating that forms around the cysts allows the cysts to remain dormant at the bottom of a dried-out vernal pool for decades, and possibly even centuries, and protects the shrimp through extreme weather conditions. ( Id. 019549.) When conditions are favorable and the vernal pool fills, a portion of the dormant cysts at the bottom of the pool will hatch. ( Id. 019550.) But once the pool dries out again, many more cysts remain dormant in the soil and may hatch during a future filling. ( See id. )

         2. Vernal Pool Networks And Watersheds

         Only vernal pools with certain characteristics provide an appropriate habitat for

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survival of the Riverside fairy shrimp. For example, " Riverside fairy shrimp will not hatch in pools that receive cool waters from early winter rains" ; rather, they exist only in pools that " retain water through the warmer weather of late spring[.]" (Listing Decision, AR 000699 (citations omitted).) Moreover, because it takes the cysts approximately eight weeks to hatch, mature, and reproduce in the water of the pool ( see 2012 Final Rule, AR 045094), the pool conditions much be such that the pool will not dry out completely in less than eight weeks. This means that the habitat of this species is limited to vernal pools that are at least moderately deep and thus take longer to evaporate. ( Id. ) In addition, the vernal pools that comprise the Riverside fairy shrimp habitat must have " nearly impermeable surface or subsurface soil layers and flat or gently sloping topography" (Final Rule: Final Designation of Critical Habitat for the Riverside Fairy Shrimp (May 30, 2001) (" 2001 Final Rule" ), AR 053047), because hard soil layers prevent water from seeping when the pond fills. ( Id. (explaining that " [i]n southern California, these impervious layers are typically alluvial materials with clay or clay loam subsoils, and they often form a distinctive micro-relief known as Gilgai or mima mound topography" ).)

         As a general matter, vernal pools that have the necessary physical characteristics to support Riverside fairy shrimp are those that fill with water during fall and winter rains, that evaporate in the spring (2012 Final Rule, AR 045093), and that typically occur in pool complexes--that is, " two or more vernal pools in the context of a larger vernal pool watershed[,]" where the pools are connected by flowing water either on or below the surface. ( Id. )[6] Vernal pool complexes and their associated watersheds are often located " in areas with Mediterranean climates where slight depressions become seasonally wet or inundated following fall or winter rains." (Listing Decision, AR 000695.) Most of the vernal pool habitats in Southern California have been lost over time due to a variety of factors including commercial growth, and only " a very small percentage remain from the U.S./Mexico borderlands north, and those that remain are found in a disturbed and artificially fragmented landscape." (Bauder & McMillan--Current Distribution and Historical Extent of Vernal Pools in Southern California and Northern Baja California, Mexico (1998), AR 046148; see also Environmental Assessment & Land Protection Plan: Vernal Pools Stewardship Project, AR 000002 (" Due to historical and ongoing agricultural activities, 78 percent of the vernal pools once located on [the southernmost mesa of California] have been lost" (citation omitted)); Vernal Pools of Southern California Recovery Plan--Bauder (Sep. 3, 1998), AR 052857 (" On much of the coastal terrace, habitat losses have resulted in a severe reduction of the geographic range of pools and the species found in them. These losses, coupled with fragmentation of the habitat, have accentuated the naturally patchy, discontinuous distribution patterns of most vernal pool species." ).)

         3. Subunit 5c

         Otay Mesa owns land in San Diego County, California, including the 57 acres that the FWS has designated as critical habitat for the Riverside fairy shrimp and which is referred to throughout this Opinion as " Subunit 5c" or " the Property." Otay Mesa plans to develop a part of Subunit 5c into a recycling center and landfill,

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which it claims is essential to address projected landfill capacity issues in San Diego County. ( See Otay Mesa Comments to Proposed Rule to Revise the Critical Habitat Determination for the Riverside Fairy Shrimp and Notice of Draft Economic Analysis (April 2, 2012) (" Otay Mesa Comments" ), AR 037643, 037649. Otay Mesa claims that the " land underlying Subunit 5C is zoned as a landfill, and the area surrounding the western boundary of the project has been designated as a landfill buffer zone, allowing only uses consistent with the future recycling center and landfill operations." ( Id. 037648.) Otay Mesa also asserts that " this facility could take more than 10 years to permit and construct" due to the number of agencies with which it must consult and the nature of the approvals that it must obtain. ( Id. 037649 (explaining in its comment letter on the proposed rule that the planned recycling facility " will need environmental review as well as permits from the Army Corps of Engineers, [the] FWS, the California Department of Fish and Game, the State Water Resources Control Board, the Regional Water Quality Control Board, and the California Integrated Waste Management Board[,]" and that " all sensitive species and habitat impacted by the Project will be mitigated in accordance with requirements imposed by the FWS as part of the Section 7 consultation" ).)

         Subunit 5c contains at least one vernal pool, which is approximately one acre in size--the pool was formerly a cattle stock pond. (2012 Final Rule, AR 045109.) According to the FWS, Subunit 5c " also contains a small stream as well as the downward slope and mima mound topography that make up the watershed associated with the [] vernal pool." ( Id. )

         In designating Subunit 5c as a critical habitat for the Riverside fairy shrimp, the FWS relied on three environmental surveys that contractors performed on this pool: one in 2000 (Large Branchiopod Dry Survey at Otay Mesa, Generating Project (Jun. 19, 2000) (" 2000 Survey" ), AR 003806-11), one in 2001 (Wet Season Survey Report for RFS at East Otay Mesa SPA (Sep. 19, 2001) (" 2001 Survey" ), AR 004784-817), and one in 2011 (Survey Report for Fairy Shrimp at Proposed East Otay Mesa Landfill Project (Dec. 23, 2011) (" 2011 Survey" ), AR 037261-76). During the 2000 survey, which was conducted when the stock pond was dry, the contractor gathered 10 soil samples from the dried-out pond bed, each of which contained Riverside fairy shrimp cysts. (2000 Survey, AR 003807-08.) The next survey began on January 23, 2001, when the stock pond was inundated with water, and ended on May 16, 2001, after the pond had dried out. " [O]n February 7, 2001, unidentified larval fairy shrimp thought to be Riverside fairy shrimp . . . were observed" in the stock pond. (2001 Survey, AR 004788, 004792.) " Later, during the March 15, 2001 sampling session, adult Riverside fairy shrimp were positively identified" in the stock pond, numbering in the tens of thousands. ( Id. 004788, 004795.) During the 2011 survey, which was conducted when the stock pond was dry, the contractor again gathered 10 soil samples. Each of these samples contained Riverside fairy shrimp cysts, in numbers " ranging from over 25 to more than 100 cysts per soil sample." (2011 Survey, AR 037261, 37263.) There is no dispute that the stock pond itself is the only location within Subunit 5c where cysts and/or shrimp have been found.

         C. The Critical Habit Rulemaking Proceedings For The Riverside Fairy Shrimp

         1. Prior Rulemaking Proceedings

         The FWS did not designate any critical habitat for the Riverside fairy shrimp

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when it listed the species as endangered in 1993, despite its statutory obligation to do so. Instead, the agency published its first rule designating a critical habitat for the Riverside fairy shrimp on May 30, 2001. (2001 Final Rule, AR 53046-77.) Several construction industry groups filed a lawsuit to challenge this rule in federal court, seeBldg. Indus. Legal Def. Found. v. Norton, 231 F.Supp.2d 100, 102 (D.D.C. 2002), which led to a settlement agreement pursuant to which the FWS published a ...


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