Plaintiffs own land in San Diego County, California, that the U.S. Fish and Wildlife Service (“the FWS”) has designated as a “critical habit” for the endangered Riverside fairy shrimp under the Endangered Species Act (“the ESA”), 16 U.S.C §§ 1531–1544. Plaintiff has filed the instant action against the FWS and its acting Director, the U.S. Department of the Interior (“Interior”), and two high-ranking Interior officers in their official capacities (collectively, “Defendants”) to challenge the propriety of the FWS’s critical habitat designation under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706. The Court has already issued one memorandum opinion in this matter, see Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 144 F. Supp. 3d 35 (D.D.C. 2015), wherein all disputed issues between Plaintiff and FWS concerning the critical habitat designation for the endangered Riverside fairy shrimp were resolved save one: namely, whether it was proper for the FWS to assign a ‘critical habitat’ designation to 56 acres of Plaintiff’s property that is immediately adjacent to the stock pond that contains the shrimp solely on the basis of the agency’s finding that the types of geological features that are generally necessary to support the shrimp species exist on those acres. The FWS had concluded that the 56 acres constituted either “occupied” critical habitat under the first prong of section 1532(5)(A) of Title 16 of the United States Code, or, alternatively, “unoccupied” critical habitat essential for the conservation of the species under the second prong of that same provision, but the agency had not conducted any hydrological studies or other surveys to determine the extent to which the 56 acres of land actually supported the ecological system that is necessary for the shrimp’s survival. As explained below, the question of whether or not the FWS employed an appropriate methodology to reach the critical habitat determination at issue in this case depends upon the meaning of the term “occupied” as it appears in the ESA, and also turns on the distinction that that statute makes between the standards for designating occupied and unoccupied critical habitats.

Before this Court at present are the parties’ renewed cross-motions for summary judgment and the supplemental briefs that they have filed regarding these key legal issues. Plaintiff maintains that it is entitled to judgment as a matter of law, because the FWS improperly designated the 56 acres of land as “occupied” habitat even though the shrimp live only in the one-acre stock pond and not on the land. Plaintiff further contends that the FWS’s occupied critical habitat designation is improper under the ESA because there is no record evidence demonstrating that all 56 acres of adjacent land must be preserved in order to supply water to the one-acre stock pond where the shrimp live, and that the FWS improperly designated the 56 acres as “unoccupied” critical habitat in the alternative because it failed to apply the statutory standard for unoccupied critical habitat designations.  Defendants respond that the Court should order summary judgment in their favor, because the FWS reasonably determined that the stock pond and all 56 adjacent acres satisfy the ESA’s definition of occupied critical habitat on the basis of the best available scientific data (Defs.’ 2d Suppl. Br., ECF No. 41, at 7–12, 16–22), and the FWS applied the correct legal standards when alternatively designating this area as unoccupied critical habitat under the ESA (id. at 12–16).

The Court finds that the law and record evidence do not support the FWS’s “occupied” or “unoccupied” critical habitat designations, and thus the critical habitat determination that Plaintiff’s challenges here must be set aside as arbitrary and capricious and contrary to law in violation of the APA. To be specific, the manner in which the FWS determined the scope of the area that the Riverside fairy shrimp occupies is inconsistent with the ESA’s prescriptions for making that determination, and when the agency determined the area of unoccupied critical habitat, it failed to employ the statutory standard that is applicable to unoccupied critical habitat designations. Consequently, Plaintiff’s renewed motion for summary judgment was granted.