                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                  )
OTAY MESA PROPERTY, L.P., et al., )
                                  )
          PLAINTIFFS,             )
                                  )
          v.                      )                    No. 13-cv-0240 (KBJ)
                                  )
UNITED STATES DEPARTMENT OF )
THE INTERIOR, et al.,             )
                                  )
          DEFENDANTS.             )
                                  )


                                  MEMORANDUM OPINION

       Plaintiffs Otay Mesa Property, L.P., Rancho Vista Del Mar, and Otay

International, LLC (collectively “Otay Mesa” or “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. Otay Mesa 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. 1

This 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 Otay Mesa and FWS concerning the critical habitat designation


1
  The FWS is an agency with the Interior Department. (Compl. ECF No. 1, ¶ 5.) Along with the FWS
and Interior, Otay Mesa has sued Interior Secretary Ryan Zinke and the current Assistant Secretary of
the Interior for Fish, Wildlife, and Parks. (Id.)
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 Otay

Mesa’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. Otay Mesa 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. (See Pls.’ 2d




                                             2
Suppl. Br., ECF No. 42, at 8–9.) 2 Otay Mesa 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. (See id. at 11–13; Pls.’ Resp. to Defs.’ Suppl. Br. & Pls.’ Renewed Mot.

for Summ. J., ECF No. 36, at 3–4.) 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).

        For the reasons explained fully below, this 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 Otay Mesa 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



2
 Page numbers herein refer to those that the Court’s electronic case filing system automatically
assigns.



                                                   3
unoccupied critical habitat designations. Consequently, Otay Mesa’s renewed motion

for summary judgment must be GRANTED, Defendants’ motion for summary judgment

must be DENIED, and the designation of Otay Mesa’s property as critical habitat must

be VACATED. A separate Order that remands this matter to the agency for further

proceedings will follow.


I.      BACKGROUND

        A.      Prior Proceedings

        The procedural history of this dispute is described in detail in the opinion that

the Court previously issued in this case, see Otay Mesa Prop., 144 F. Supp. 3d 35;

therefore, only a brief recounting of certain relevant background details is necessary

here. The long and short of it is that Riverside fairy shrimp are “small freshwater

crustacean[s]” that “rely upon ‘vernal pool’ hydrology” to grow and reproduce, id. at

44, and since 2001, the FWS has been engaged in rule-making aimed at designating the

critical habitat for this endangered species pursuant to the prescriptions of the ESA, see

id. at 47. 3 Two prior rules that the FWS promulgated with respect to these shrimp—one

in 2001 and one in 2005—were each challenged in federal court, which resulted in

settlement agreements and the subsequent promulgation of revised rules. Id. At issue

in this case is the most recent critical habitat designation for this species, which the

FWS promulgated by a third rule-making process that took place in 2012 (“2012 Rule”),

following the settlement of litigation arising from the 2005 rule.




3
 Vernal pools are “pools that fill with water during fall and winter rains and evaporate in the spring.”
Otay Mesa Prop., 144 F. Supp. 3d at 44.



                                                    4
        Plaintiffs are businesses that own the land in San Diego County, California,

including property on which is located a one-acre vernal pool that was formerly a cattle

stock pond and is now home to endangered Riverside fairy shrimp. Based upon

environmental surveys that showed that the filled stock pond contained adult Riverside

fairy shrimp during the wet season and the dried-out bed of that stock pond had

Riverside fairy shrimp cysts in it during the dry season, the FWS determined that this

endangered species “occupied” the one-acre stock pond at the time the species was

listed in 1993—a finding that this Court has already upheld. Id. at 59. In the 2012

Rule, the FWS proceeded to designate as “occupied” critical habitat for the Riverside

fairy shrimp not only the stock pond itself, but also approximately 56 acres of

surrounding land (which is referred to throughout this Opinion as “Subunit 5c” or “the

Property”), and alternatively, the FWS labelled those same areas as “unoccupied”

critical habit, for the purpose of the ESA. Id. at 52–53. 4 Otay Mesa has plans to build

a recycling center and landfill on the Property, and in the instant context, it represents

that the FWS’s critical habitat designation “may make the completion of this project

infeasible.” (Pls.’ Mem. in Supp. of Summ. J., ECF No. 9-1, at 34.) Consequently,

Otay Mesa has filed a complaint that contends that the FWS’s designation of the one-

acre vernal pool and the surrounding 56 acres of land as protected critical habitat under

the ESA was an arbitrary and capricious determination, and was also contrary to law, in

violation of the APA. See Otay Mesa Prop., 144 F. Supp. 3d at 39.




4
  There is no dispute that the only location on the Property where shrimp are actually located is the
one-acre pool.



                                                    5
       On September 30, 2015, this Court denied without prejudice the parties’ initial

cross-motions for summary judgment. Id. In so ruling, the Court found that Otay Mesa

had standing to bring its lawsuit, and that the FWS did not act arbitrarily or

capriciously with respect to either the economic analysis underlying the critical habitat

designation or its decision not to conduct an analysis of the challenged critical habitat

designation under the National Environmental Policy Act, 42 U.S.C §§ 4321–4370. See

id. at 39. This Court further found that it had insufficient information to resolve the

parties’ dispute about the rationality of the scope of the FWS’s critical habitat

designation, because the Court could not “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” for the pond. Id.; see also id. at 39−40 (explaining that “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 as critical

habitat qualifies as such” (emphasis added)). Consequently, the Court ordered the

parties to file supplemental briefs that addressed the factual underpinnings for the

FWS’s designation of 56 acres of land as watershed for the one-acre pond, along with

any additional supporting documents from the Administrative Record. (See Suppl. Br.

Order, ECF No. 31, at 1−2.)

       B.     Current Proceedings

       Defendants and Otay Mesa filed the requested supplemental briefs and renewed

their cross-motions for summary judgment. (See Defs.’ Suppl. Br., ECF No. 33; Pls.’

Resp. to Defs.’ Suppl. Br. & Pls.’ Renewed Mot. for Summ. J., ECF No. 37.) The Court

heard oral argument on the parties’ renewed motions (Min. Entry of Mar. 15, 2017), and




                                             6
during the hearing, Defendants’ counsel explained that the FWS’s methodology for

determining the scope of the watershed—and thus the area that the FWS had deemed

“occupied” or, alternatively, “unoccupied” critical habitat for the Riverside fairy

shrimp—consisted of mapping the geographic location of the “primary constituent

elements” (“PCEs”) that the FWS had identified for the endangered species at issue

(which, as noted, is itself located solely in the one-acre stock pond), and then drawing

the boundary of the critical habitat around those areas abutting the stock pond where all

three PCEs exist, without additional analysis. (See Mot. Hr’g Tr., 47:4–48:24, Mar. 15,

2017.) 5

          As a result, it became apparent that the parties’ dispute about whether the FWS’s

designation of the 56 adjacent acres as critical habitat violates the APA is, at bottom, a

disagreement over whether the FWS’s method of defining the scope of the territory that

is “occupied” by the endangered species at issue is consistent with the ESA, which in

turn implicates the issue of whether the area around the stock pond qualifies as

“occupied” critical habitat under the statute—an issue that this Court did not reach in

the context of its earlier summary judgment ruling. See Otay Mesa Prop., 144 F. Supp.

3d at 59–61 (explaining that “the FWS [had] decided that the Riverside Fairy shrimp

‘occupied’ the stock pond and [also] the watershed area surrounding the stock pond at


5
    It is undisputed that the PCEs for the Riverside Fairy shrimp are:

          [F]irst, a vernal pool wetland, with pools that have suitable chemistry, that are
          filled 2 to 8 months during the winter and spring (though not necessarily every
          year), and that dry out in late spring or summer; second, adjacent areas that
          function as the local watershed, which may range in size from a few acres to more
          than 100 acres and which facilitate the filling of the pools in the winter and spring;
          and third, underlying soils that have an impermeable layer such that the pool can
          fill during the winter and spring months.

Otay Mesa Prop., 144 F. Supp. 3d at 48 (citations omitted).



                                                      7
the time of listing,” and had determined, in the alternative, that “Subunit 5c qualified as

‘unoccupied’ critical habit[,]” but finding that, regardless, the agency had the statutory

authority to make that determination). In other words, the Court discovered that, far

from being immaterial, the question of whether the geographic area surrounding the

stock pond constitutes “occupied” or “unoccupied” terrain under the ESA was crucial to

resolving the merits of Otay Mesa’s remaining APA claim. As a result, the Court

ordered the parties to file a second round of supplemental briefs, this time addressing

(1) whether the “occupied” or “unoccupied” prong of the statutory critical habitat

definition applies to the habitat at issue here; (2) whether the ESA authorizes the FWS

to delineate the protected critical habitat under either prong by merely mapping the

identified PCEs in the general area; and (3) whether this Court should give any weight

to the Ninth Circuit’s decision in a case that agency counsel raised and relied upon

during the hearing—Alaska Oil and Gas Association v. Jewell, 815 F.3d 544 (9th Cir.

2016)—which held that the FWS could designate an area that contains the PCEs for a

species as critical habitat without establishing that the species currently uses that area,

see id. at 555–56. (See 2nd Order for Suppl. Briefing, ECF No. 38.)

       The parties filed their second supplemental briefs on May 10, 2017, and May 31,

2017, respectively, and responses followed. (See Defs.’ 2d Suppl. Br., ECF No. 41;

Pls.’ 2d Suppl. Br., ECF No. 42; Defs.’ Resp. to Pls.’ 2d Suppl. Br., ECF No. 43; Pls.’

Resp. to Defs.’ 2d Suppl. Br., ECF No. 44.) In its brief, Otay Mesa insists that the

“occupied” prong of the critical habitat provision is inapposite because the shrimp are

indisputably only present in the pond and not anywhere else on the 56 surrounding

acres. (See Pls.’ 2d Suppl. Br. at 8.) Otay Mesa argues further that the FWS erred in




                                             8
delineating all 56 acres as “unoccupied” critical habitat because the presence of PCEs,

standing alone, is insufficient to support an unoccupied critical habitat designation (id.

at 8–17); instead, according to Otay Mesa, the unoccupied critical habitat standards

required the FWS to “determine how much, if any, of the 56 acres was necessary to

water the stock pond[,]” and to make a specific finding that “this area was essential to

the conservation of the species[,]” given “that existing occupied habitat was

inadequate” (id. at 14). Otay Mesa also maintains that this Court should not afford any

weight to the Ninth Circuit’s decision in Alaska Oil, because that case dealt with the

designation of occupied critical habitat for a species that was highly mobile, while this

case concerns unoccupied critical habitat for an essentially immobile species. (Id. at

17.)

       For their part, Defendants insist that the FWS “relied primarily” on the occupied

prong of the ESA’s critical habitat definition, and that the prescriptions of that

provision apply to the instant circumstances. (Defs.’ 2d Suppl. Br. at 7.) In

Defendants’ view, the Riverside fairy shrimp species “occupies” the stock pond and

also all of the surrounding acres (despite the actual confinement of the animals

themselves to the pond) within the plain meaning of the statute, and furthermore Alaska

Oil teaches that it is permissible for the FWS to rely solely on the presence of the PCEs

on the acres surrounding the pond, without studying runoff or conducting any other

kind of hydrologic analysis, in order to delineate “the specific areas within the

geographical area occupied by the species[,]” 16 U.S.C. § 1532(5)(A)(i). (See Defs.’ 2d

Suppl. Br. at 7–20.) Defendants further argue that the FWS properly designated the

stock pond and the 56 surrounding acres as unoccupied critical habitat in the




                                             9
alternative, see 16 U.S.C. § 1532(5)(A)(ii) (authorizing designation of areas “outside

the geographical area occupied by the species” if the Secretary determines such areas

“are essential for the conservation of the species”), because the general loss of vernal

pool habitat in this area of San Diego County necessitates the preservation of this

known vernal pool, and because the Riverside fairy shrimp in this particular pool have

unique genetics. (See Defs.’ 2d Suppl. Br. at 11–16.) Defendants also maintain that,

since no hydrologic studies were readily available at the time of the designation and the

ESA only requires that the agency rely on the best available data, the FWS did not need

to conduct any hydrologic analysis to support this unoccupied critical habitat

designation. (See id. at 16–19.)

       With the two rounds of supplemental briefing complete, the parties’ renewed

motions for summary judgment are now ripe for this Court’s consideration.


II.    LEGAL STANDARDS

       A.     Summary Judgment in APA Cases

       Summary judgment is the appropriate means for determining, as a matter of law,

if “agency action is supported by the administrative record and is otherwise consistent

with the APA standard of review.” Hill Dermaceuticals, Inc. v. FDA, No. 11-1950,

2012 WL 5914516, at *7 (D.D.C. May 18, 2012) (citing Richard v. INS, 554 F.2d 1173,

1177 & n.28 (D.C. Cir. 1977)). While the ordinary summary judgment standard is laid

out in Federal Rule of Civil Procedure 56, “it is well established that, in cases involving

review of a final agency action[,] . . . the standard set forth in [Rule 56] does not apply

because of the limited role of [the] court in reviewing the administrative record.”

Otsuka Pharm. Co., Ltd. v. Burwell, 302 F. Supp. 3d 375, 389 (D.D.C. 2016), aff’d sub



                                            10
nom. Otsuka Pharm. Co. v. Price, 869 F.3d 987 (D.C. Cir. 2017) (alterations in

original) (internal quotation marks and citation omitted). In this context, the function

of the agency is “to resolve factual issues to arrive at a decision that is supported by the

administrative record, whereas ‘the function of the district court is to determine whether

or not as a matter of law the evidence in the administrative record permitted the agency

to make the decision it did.’” Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d

203, 207 (D.D.C. 2007) (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th

Cir. 1985)). In other words, “the district judge sits as an appellate tribunal[,]” Am.

Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), and “[t]he entire

case on review is a question of law, and only a question of law[,]” Marshall Cnty.

Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993); see also Cognitive

Prof’l Servs. Inc. v. U.S. Small Bus. Admin., 254 F. Supp. 3d 22, 32 (D.D.C. 2017)

(making clear that the core legal question is “whether the agency acted arbitrarily or

capriciously, or in violation of another [APA] standard”) (alteration in original)

(internal quotation marks and citation omitted)).

       Notably, “[w]hile the court’s review [on summary judgment] must be ‘searching

and careful, the ultimate standard of review is a narrow one’ and the court ‘is not

empowered to substitute its judgment for that of the agency.’” Cape Hatteras Access

Pres. All. v. U.S. Dep’t of Interior, 731 F. Supp. 2d 15, 21 (D.D.C. 2010) (quoting

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)). Moreover, in

cases involving complex scientific determinations and technical expertise, the Supreme

Court has directed that the district court “generally be at its most deferential.”

Baltimore Gas & Electric Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983);




                                             11
see also Marsh v. Ore. Nat. Res. Council, 490 U.S. 360, 377 (1989) (noting that where a

determination “requires a high level of technical expertise, [a court] must defer to the

informed discretion of the responsible federal agencies” (internal quotation marks and

citation omitted)). However, “[t]his deferential standard cannot permit courts [] merely

to rubber stamp agency actions, nor be used to shield the agency’s decision from

undergoing a thorough, probing, in-depth review.” Guindon v. Pritzker, 31 F. Supp. 3d

169, 186 (D.D.C. 2014) (internal quotation marks and citation omitted); see also Otay

Mesa Prop., L.P. v. U.S. Dep’t of Interior, 646 F.3d 914, 916 (D.C. Cir. 2011)

(“Substantial evidence is a deferential standard. But deference is not abdication.”);

Huff v. Vilsak, 195 F. Supp. 3d 343, 352 (D.D.C. 2016) (noting that, even under the

deferential standard of review, “courts retain a role, and an important one, in ensuring

that agencies have engaged in reasoned decisionmaking, which means the court must

ensure that the decision was based on a consideration of the relevant factors and

determine whether there has been a clear error of judgment” (internal quotation marks,

brackets, and citation omitted)).

       B.     The Chevron Framework

       When assessing the FWS’s interpretation of the Endangered Species Act—a

statute that that agency administers—this Court is required to apply the familiar two-

step framework laid out in Chevron, USA., Inc. v. National Resources Defense Council,

Inc., 467 U.S. 837 (1984). See Ass’n of Private Sector Colls. & Univs. v. Duncan, 681

F.3d 427, 441 (D.C .Cir. 2012). Step One directs that, if “Congress has directly spoken

to the precise question at issue,” the Court must give effect to that “unambiguously

expressed intent[.]” Nat’l Treasury Emps. Union v. Fed. Labor Relations Auth., 414

F.3d 50, 57 (D.C. Cir. 2005) (internal quotation marks omitted) (quoting Chevron, 467


                                            12
U.S. at 842–43). In conducting the requisite analysis, the pertinent question is not

whether the statutory terms at issue are “‘in some abstract sense, ambiguous, but rather

whether, read in context and using the traditional tools of statutory construction,’ the

terms unambiguously mean what the party claiming victory at Step One says they

mean.” Otsuka, 302 F. Supp. 3d at 389 (quoting Cal. Indep. Sys. Operator Corp. v.

FERC, 372 F.3d 395, 400 (D.C. Cir. 2004)); see also Sierra Club v. EPA, 551 F.3d

1019, 1027 (D.C. Cir. 2008) (explaining that the tools used to evaluate statutory

provisions include an examination of the provision in its full context and, as

appropriate, references to legislative history).

       If the statute at issue “can be read more than one way” and is thus properly

deemed ambiguous, AFL–CIO v. FEC, 333 F.3d 168, 173 (D.C. Cir. 2003) (citation

omitted), or if the statute is “silent” regarding the relevant question, Van Hollen, Jr. v.

FEC, 811 F.3d 486, 495 (D.C. Cir. 2016), the Court must proceed to Step Two, wherein

such ambiguity or silence is generally considered to be “‘an implicit delegation from

Congress to the agency to fill in the statutory gaps[,]’” id. at 495 (quoting FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (emphasis omitted)).

Accordingly, the nature of judicial review at Step Two is “highly deferential[,]” Vill. of

Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 667 (D.C. Cir. 2011), meaning

that the court must “accept the agency’s [reasonable] construction of the statute, even if

the agency’s reading differs from what the court believes is the best statutory

interpretation[,]” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 980 (2005) (citation omitted); see also Peter Pan Bus Lines, Inc. v. Fed. Motor

Carrier Safety Admin., 471 F.3d 1350, 1353 (D.C. Cir. 2006) (noting that, at Chevron




                                             13
Step Two, the court must defer to the agency’s interpretation of a statute if it is “based

on a permissible construction of the statute”) (internal quotation marks and citation

omitted). Significantly for present purposes, although “[a]n agency’s interpretation of

its enabling statute and its own regulations is usually entitled to deference, . . . there are

limits on when and how far a court should defer to the agency[, and a court] must

overturn agency action and interpretation inconsistent with the regulations and statutes

themselves.” Shepherd v. Merit Sys. Prot. Bd., 652 F.2d 1040, 1043 (D.C. Cir. 1981).

       C.     The Endangered Species Act

       As explained fully in this Court’s prior opinion in this case, “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.”

Otay Mesa Prop., 144 F. Supp. 3d at 40 (citing 16 U.S.C. § 1531(b)); see also Alaska

Oil & Gas Ass’n, 815 F.3d at 550–51 (“The purpose of the ESA is to ensure the

recovery of endangered and threatened species, not merely the survival of their existing

numbers.”), cert. denied sub nom. Alaska Oil & Gas Ass’n v. Zinke, 137 S. Ct. 2091

(2017), Alaska v. Zinke, 137 S. Ct. 2110 (2017). To accomplish this goal, the Act

directs the Secretary of the Interior to list “endangered” and “threatened” species for

federal protection, 16 U.S.C. §§ 1532(6), (20), and also to designate geographical areas

as “critical habitat” for listed species, where appropriate, id. § 1533(a)(3)(A)(i). “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.”

Otay Mesa Prop., 144 F. Supp. 3d at 40 (citing 50 C.F.R. § 402.01 (2015)). The FWS

is also authorized to make the “critical habitat” determination. See 50 C.F.R. § 424.10.


                                             14
When the agency undertakes to list a species under the ESA or make a critical habitat

designation, the ESA requires the agency to rely on the best available scientific data.

See 16 U.S.C. § 1533(b).

       As relevant here, the ESA delineates two types of critical habitat for endangered

species:

              (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). Subdivision (i) is commonly referred to as “occupied” critical

habitat, while subdivision (ii) is typically termed “unoccupied” critical habitat. The

Act further instructs that, “[e]xcept in those circumstances determined by the Secretary,

critical habitat shall not include the entire geographical area which can be occupied by

the threatened or endangered species.” Id. § 1532(5)(C) (emphasis added). Properly

understood, then, the statutory text of the ESA plainly requires the agency to start by

delineating the geographical area that the species at issue occupies, and then proceed to

determine the critical habitat by reference to that area, with occupied critical habitat

being a subset of that area (or in exceptional cases, coextensive with that area) and

unoccupied critical habitat consisting of specific geographical areas outside the area

occupied by the species. See id. § 1532(5)(A).




                                            15
       Importantly, the Secretary of the Interior has promulgated regulations that

pertain to how the agency implements the ESA’s critical habitat requirements. See 50

C.F.R. § 424.12 (titled “Criteria for designating critical habitat”); see id. § 424.12(b)

(specifying that, “[w]here designation of critical habitat is prudent and determinable,

the Secretary will identify specific areas within the geographical area occupied by the

species at the time of listing and any specific areas outside the geographical area

occupied by the species to be considered for designation as critical habitat”). With

respect to determining the occupied critical habitat of an endangered species, the

regulations underscore that occupied critical habitat should be a portion of the overall

area that a species occupies, by instructing the Secretary to:

               (i) Identify the geographical area occupied by the species at
               the time of listing.

               (ii) Identify physical and biological features essential to the
               conservation of the species at an appropriate level of
               specificity using the best available scientific data. . . .

               (iii) Determine the specific areas within the geographical
               area occupied by the species that contain the physical or
               biological features essential to the conservation of the
               species.

               (iv) Determine which of these features may require special
               management considerations or protection.

Id. § 424.12(b)(1) (emphasis added). Similarly, for unoccupied critical habitat, the

regulations instruct the Secretary to “identify, at a scale determined by the Secretary to

be appropriate, specific areas outside the geographical area occupied by the species that

are essential for its conservation, considering the life history, status, and conservation

needs of the species based on the best available scientific data.” Id. § 424.12(b)(2)

(emphasis added). Neither the statute nor the applicable regulations defines “the



                                             16
geographical area occupied by the species”—i.e., the key reference point in making the

critical habitat designation under the statute—and neither explains how the Secretary

should go about identifying this geographical area.


III.   ANALYSIS

       It has taken years of litigation and multiple rounds of briefing, but the core legal

question underlying the parties’ dispute in this matter has now become apparent. This

issue—the appropriateness of the FWS’s methodology for drawing the boundaries of the

critical habitat for the Riverside fairy shrimp—implicates two relatively straightforward

questions of statutory interpretation: first, whether the FWS’s manner of determining

“the geographical area occupied by the [Riverside fairy shrimp] species” is consistent

with the ESA, and second, whether the FWS acted consistently with the ESA and

applicable regulations when it identified the critical habitat of the Riverside fairy

shrimp solely vis-à-vis the topography of the pertinent geographical without further

analysis of whether and to what extent the area actually functions as watershed. As

explained below, this Court has determined that, even after granting the FWS the

deference that it is due under Chevron, the agency’s identification of the geographical

area occupied by the Riverside fairy shrimp was unreasonable and therefore arbitrary

and capricious, which means that the resulting occupied critical habitat determination

violated the APA. The Court further concludes that the agency’s alternative

designation of the 56 acres surrounding the stock pond as unoccupied critical habitat

violated the ESA, because the agency made that determination solely in reference to the

presence of PCEs and without conducting any further analysis about whether

preservation of this area was essential for the conservation of the species.



                                            17
       A.     By Encircling All Vernal Pools Where The Species Has Been Sighted
              As Well As All Land In Between, The FWS Improperly Identified The
              Area Occupied By The Riverside Fairy Shrimp

       Because the ESA defines both “occupied” and “unoccupied” critical habitat in

reference to “the geographical area occupied by the species[,]” 16 U.S.C. § 1532(5)(A),

the FWS’s first step in making any critical habitat designation must be to identify the

“geographical area occupied by the species” at the time that the agency initially listed

the species, id.; see also 50 C.F.R. § 424.12(b)(1). In the 2012 Rule, the FWS purports

to delineate the “geographical area occupied by the” Riverside fairy shrimp by

identifying the outermost geographical boundaries of the various vernal pools in the

state of California where the shrimp have been sighted, as follows:

              [T]hat area bounded by the coastline to the west, east to an
              area near tribal land of the Pechanga Band of Luiseño
              Mission Indians of the Pechanga Reservation, California, in
              western Riverside County, north into the central foothills of
              Orange County near the former Marine Corps Air Station
              (MCAS) El Toro, and south to coastal mesa tops along the
              United States-Mexico Border in San Diego County.

77 Fed. Reg. 72081. The rule further notes that, in the years since the Riverside fairy

shrimp was first listed as endangered in 1993, the species has been documented in

additional areas in Ventura, Orange, Riverside, and San Diego counties in California,

and that the FWS considers these additional areas to also be within the geographical

area that the Riverside fairy shrimp occupied when it was listed. See id.

       Nowhere in the briefing of the issues in this case does the FWS discuss, much

less justify, its apparent threshold determination that the Riverside fairy shrimp species

“occupies” this entire geographical area such that it is appropriate to designate large

swaths of land within this area as occupied critical habitat under the ESA. (See, e.g.,

Defs.’ Combined Opp’n to Pls.’ Mot. for Summ. J. & Mem. in Supp. of Cross-Mot. for


                                            18
Summ. J. (“Defs.’ MSJ Mem.”), ECF No. 14-1, at 22–30 (ignoring the rule’s initial

finding regarding the geographical area the species occupies and arguing solely that the

vernal pool and 56 additional acres of land that constitute Subunit 5c are properly

characterized as occupied critical habitat for ESA purposes because that subunit

contains both a pool where shrimp have been found and the requisite PCEs).) And for

the reasons explained below, it is clear to this Court that it is manifestly unreasonable

for the FWS to have determined that this entire geographic area is “occupied” by the

Riverside fairy shrimp. Thus, even under Chevron’s two-step framework, this Court

cannot countenance the FWS’s decision to interpret the ambiguous statutory term

“occupied” to include all of the various vernal pools in the state of California where the

Riverside fairy shrimp actually reside and also all of the land in between those pools,

which means that the 2012 Rule violates the terms of the ESA at the outset, even prior

to setting forth the particular critical habitat designation that Otay Mesa challenges in

this case.

              1.     Although The Term “Occupied” As It Appears In The ESA Is
                     Ambiguous, The FWS’s Determination That The Riverside Fairy
                     Shrimp Occupies Areas Where The Shrimp Are Not (And Can In
                     Fact Never Be) Located Is Unreasonable

       It is undisputed that the ESA does not define the term “occupied” or the related

and repeated phrase “geographical area occupied by the species[.]” See, e.g., Cape

Hatteras Access Pres. All., 344 F. Supp. 2d at 119. To be sure, the lack of a definition

alone does not render a word or phrase in a statute ambiguous, see Otsuka Pharm. Co.,

302 F. Supp. 3d at 394; however, several courts have evaluated the term “occupied” as

it is used in the ESA, and as far as this Court can tell, the unanimous conclusion is that

this term is ambiguous for Chevron purposes. See, e.g., N.M. Farm & Livestock Bureau



                                            19
v. U.S. Dep’t of the Interior, No. 15cv00428, 2017 WL 4857444, at *3 (D.N.M. Oct. 25,

2017) (noting that “[t]he term ‘occupied’ as used in the ESA has been found to be

ambiguous and not plainly defined” (citation omitted)); Cape Hatteras Access Pres.

All., 344 F. Supp. 2d at 120 (noting that “[t]he Service does not have a regulation that

imposes a single definition of ‘occupied’ for all species; rather, the Service has retained

flexibility and defines the term differently depending on a given species’s

characteristics”); cf. Ariz. Cattle Growers’ Ass’n, 606 F.3d at 1164 (demonstrating the

ambiguous nature of the term by substituting “resides” for “occupied” and noting

that,“[v]iewed narrowly, an owl resides only in its nest; viewed more broadly, an owl

resides in a [Protected Activity Center]; and viewed more broadly still, an owl resides

in its territory or home range”).

       This Court agrees that “occupied” is susceptible to more than one meaning in the

context in which that term appears in the ESA; therefore, that term is properly

considered ambiguous such that the FWS is entitled to deference in its construction of it

in the context of the instant case. See Chevron, 467 U.S. at 842–43; see also Otsuka

Pharm Co., 302 F. Supp. 3d at 174 (noting that the relevant question for Chevron Step

One is whether a statutory provision “[is]susceptible of multiple plausible

interpretations and [is] thus ambiguous, or whether there is only one possible

interpretation of this statutory language” (internal citations omitted)); Am. Meat Inst. v.

U.S. Dep’t of Agric., 968 F. Supp. 2d 38, 59 (D.D.C. 2013) (noting that “ambiguity in

[a] statutory term would require this Court to proceed to evaluate the permissibility of

the agency's interpretation under Chevron’s step two [which] requires the Court to defer

to an agency’s interpretation of a statute unless that interpretation is impermissible”




                                            20
(internal citations omitted)), aff’d en banc, 760 F.3d 18 (D.C. Cir. 2014). But the

deference that the FWS is owed with respect to its interpretation of “occupied” in

regard to the designation of critical habitat for the Riverside fairy shrimp must give way

to the plain language of the ESA when the agency’s construction of that term is

scrutinized for permissibility under Chevron’s Step Two. See Cognitive Prof’l Servs.,

254 F. Supp. 3d at 33 (explaining that, under Step Two, the court determines whether

the agency’s interpretation of an ambiguous term “‘is based on a permissible

construction of the statute’” (quoting Chevron, 467 U.S. at 843)); see also Mayo Found.

for Med. Educ. & Research v. U.S., 562 U.S. 44, 53 (2011) (explaining that, where a

statute is silent as to a relevant question, Chevron requires courts to defer to the

agency’s construction of that statute “unless it is arbitrary or capricious in substance, or

manifestly contrary to the statute”).

       To understand why the instant “occupied” determination fails at Chevron Step

Two, recall that in the instant case the FWS identified the geographical area that is

occupied by the Riverside fairy shrimp by locating on a map the various isolated vernal

pools where Riverside fairy shrimp have been sighted and encircling not only all of

those pools but also all of the land around and between them. See 77 Fed. Reg. 72081

(describing a single area extending east-to-west from the Pacific coast to western

Riverside County, CA, and north-to-south from Orange County, CA to the United

States-Mexico border). This methodology—i.e., determining the entire radius of the

geographical area where the animal has been spotted—appears to be one that the agency

routinely employs as the first step of making a critical habitat designation, and it seems

imminently logical to do precisely this when the FWS is considering a critical habitat




                                             21
designation for a mobile species that might use one geographical area for eating,

another area for reproducing, and still another area for sleeping. See, e.g., Ctr. for

Biological Diversity v. Ross, 310 F. Supp. 3d 119, 123 (D.D.C. 2018) (noting that the

critical habitat for a migratory whale species extended from Maine to Florida because

the whales “migrate annually from their summer feeding grounds off the Northeast

Coast of the United States to their winter breeding grounds off the Southeast Coast”

(internal quotation marks and citation omitted)).

       Indeed, in such cases, the ‘occupancy’ question that commonly arises is “how

frequently a species must use an area” before an agency can properly deem the species

to occupy that area for the purpose of determining its critical habitat, which is

admittedly a “highly contextual and fact-dependent inquiry.” Ariz. Cattle Growers’

Ass’n, 606 F.3d at 1164. Relevant factors for making this threshold occupancy

determination include “how often the area is used, how the species uses the area, the

necessity of the area for the species’ conservation, [and] species characteristics such as

degree of mobility or migration,” id., as well as whether “individual members of the

protected species are likely to be found there [and] whether or not the area holds a

resident breeding population[,]” N.M. Farm & Livestock Bureau, 2017 WL 4857444, at

*3. And where “the [species] uses [the area] with sufficient regularity that it is likely

to be present during any reasonable span of time[,]” courts have generally deferred to

the FWS’s determination that a species occupies that particular geographic area. Ariz.

Cattle Growers’ Ass’n, 606 F.3d at 1164; see also Cape Hatteras Access Pres. All., 344

F. Supp. 2d at 120 (finding that the FWS had permissibly construed the statute where its

method of determining whether the species occupied a geographical area was to “look




                                            22
for areas with ‘consistent use,’ which [the FWS] defined as those areas where

‘observations over more than one wintering season’ demonstrated [the species’]

presence[]”).

          Generally speaking, the FWS’s look-for-consistent-use-by-the-listed-species

approach to determining the geographical area of occupancy is a permissible and

reasonable construction of the statutory term “occupied” because “to occupy” means “to

take up residence in[.]” Merriam-Webster Dictionary, 6 and because the text and

structure of the ESA plainly indicate that Congress intended for the agency to locate

those areas where the endangered or threatened species physically exists, at least for

some period of time, and then determine which areas “within” that location qualify as

critical habitat as defined by the statute. See 16 U.S.C. § 1532(5)(A)(i) (emphasis

added). But the FWS appears to have abandoned this methodology as applied to the

instant “not migratory” species. See 77 Fed. Reg. 72079; see also id. at 72081

(explaining that the Riverside fairy shrimp is “relatively sedentary and possesses

limited dispersal capabilities”). That is, rather than acknowledging the undisputed

scientific fact that the vernal pools themselves are the only geographical areas where

individual Riverside fairy shrimp are “likely to be found[,]” N.M. Farm & Livestock

Bureau, 2017 WL 4857444 at *3, or that the species “uses with sufficient

regularity[,]”Ariz. Cattle Growers’ Ass’n, 606 F.3d at 1164, the FWS has included in its

area of occupancy for this species the land around these pools, where the species has

never been found and could never physically exist. See 77 Fed. Reg. 72081. The

FWS’s reading also defies logic: under its interpretation of “occupied,” if two vernal



6
    Located at http://unabridged.merriam-webster.com/unabridged/occupy (last visited Sept. 24, 2018).


                                                    23
pools containing Riverside fairy shrimp cysts were sighted on either side of the Mojave

desert, the agency could deem all of the desert area between the two ponds as the

“geographical area occupied by the species” even though the species has never been,

and could never be, present in the desert. There is nothing about the ESA’s use of

“occupied,” or the plain meaning of that term, or, quite frankly, common sense, that

permits this result. See Ariz. Cattle Growers’ Ass’n, 606 F.3d at 1164 (emphasizing the

Riverside fairy shrimp’s limited “degree of mobility or migration”).

       What is more, the FWS’s inclusion of geographical areas where no shrimp are

located in its occupancy finding for ESA purposes, simply and solely because such

areas are adjacent to where shrimp have been found, clearly runs afoul of the D.C.

Circuit’s decision in Otay Mesa Property, L.P. v. U.S. Department of Interior, 646 F.3d

914 (D.C. Cir. 2011). The panel in that case evaluated the designation of 143 acres of

Otay Mesa’s land as occupied critical habitat for a different species of fairy shrimp (the

San Diego fairy shrimp). The Circuit found that, because there had only been a single

sighting of four shrimp in one tire rut on the property, four years after the species was

listed as endangered, the FWS had improperly designated the land as occupied critical

habitat. Id. at 916–17. Furthermore, and notably, the panel rejected the FWS’s

argument that, even if no shrimp had been located on the property itself, the property

was nonetheless “occupied” by the shrimp because it was part of a vernal pool complex

connected to other locations where shrimp had been observed. Id. at 918. In rejecting

this argument, the Circuit emphasized that “the potential existence of San Diego fairy

shrimp outside plaintiffs’ property does not itself show that San Diego fairy shrimp

occupy plaintiffs’ property[.]” Id.




                                            24
       So it is here. Rather than focusing on whether and to what extent the Riverside

fairy shrimp species actually occupies the particular geographical area that it seeks to

designate, the FWS has located the various pools where the shrimp have been seen and,

as a threshold matter, has deemed all of the land around and between those pools—even

land on which the shrimp cannot possibly reside—as “occupied” territory. This

methodology is patently inconsistent with the statute’s requirement that the agency

locate the geographic areas where the species is present (i.e., those areas the species

occupies), and as a result, the agency’s interpretation of the statute to include areas on

which the species does not and cannot exist is not entitled to deference. See Shepherd,

652 F.2d at 1043. Put in the vernacular of APA jurisprudence, the agency has “failed to

consider an important aspect of the problem”—i.e., actual occupancy status of the

shrimp—or has offered “an explanation for its decision that runs counter to the

evidence before the agency” with respect to the threshold area-of-occupancy

determination, Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43; therefore, its related determination that the vernal pool and the 56

acres of surrounding land constitute occupied critical habitat must be deemed arbitrary

and capricious and in violation of the APA, id.

              2.     The Vernal Pool On Subunit 5c Is The Only Geographical Area
                     That The Riverside Fairy Shrimp Species Occupies

       In the briefs that the agency has submitted in regard to this matter, counsel for

Defendants appears to argue (contrary to the text of the published crucial habitat

designation) that the geographical area that the Riverside fairy shrimp species occupies

for present purposes is the 57-acre subunit upon which the one-acre stock pond (vernal

pool) sits. (See Defs.’ MSJ Mem. at 17.) The briefing contains little explanation as to



                                            25
how the FWS determined, based on sightings that were limited to the stock pond, that

Riverside fairy shrimp occupy all of Subunit 5c, and the 2012 Rule, which indicates

that the FWS has found that “[t]his subunit is currently occupied” by the shrimp based

on a 2011 survey that “documented the presence of Riverside fairy shrimp cysts” in the

pool bed, 77 Fed. Reg. 72092, is of little help. See id. (purporting to explain the FWS’s

determination that “[t]his subunit is essential for the conservation of Riverside fairy

shrimp because its occupied pool and surrounding watershed are essential to maintain

habitat function, genetic diversity, and species viability”). Importantly, at the motion

hearing held in this matter, counsel for FWS explained the agency’s methodology for

concluding that this area was “occupied” critical habitat: it searched for the PCEs that

the FWS had identified for this shrimp species on a map of the area, and then circled

both the stock pond and all adjacent land areas where all three PCEs exist. (See Mot.

Hr’g Tr., 41:4–42:24, Mar. 15, 2017.)

       If this is, in fact, how the FWS determined that the Riverside fairy shrimp

species occupies all 56 acres of land surrounding the stock pond, the agency has

improperly ignored the process the ESA designates for making an occupied critical

habitat determination. See State Farm Mut. Auto. Ins. Co., 463 U.S. at 43.

Specifically, as noted above, the statute contemplates that the agency will first

determine “the geographical area occupied by the species” and then proceed to identify

the “areas within the geographical area occupied by the species” on which the PCEs are

found. 16 U.S.C. § 1532(5)(A)(i) (emphasis added). This reading is underscored by the

governing regulations, which require the FWS to begin by “(i) [i]dentify[ing] the

geographical area occupied by the species at the time of listing” and also “(ii)




                                            26
[i]dentify[ing] physical and biological features essential to the conservation of the

species at an appropriate level of specificity using the best available scientific data.”

50 C.F.R. § 424.12(b)(1). And it is only after the FWS has made these individual

determinations that the regulations require FWS to “(iii) [d]etermine the specific areas

within the geographical area occupied by the species that contain the physical or

biological features essential to the conservation of the species.” Id. This statutorily-

prescribed procedure—first, determining what area a species occupies and the relevant

PCEs for the species, and thereafter determining whether and to what extent the PCEs

exist “within the geographical area occupied by the species” id. (emphasis added)—

means that the occupied critical habitat will never be more expansive than the actual

area of occupancy, and indeed, may not even be the entirety of the occupied area. See

16 U.S.C. § 1532(5)(C) (“Except in those circumstances determined by the Secretary,

critical habitat shall not include the entire geographical area which can be occupied by

the threatened or endangered species.”). Moreover, and notably, the FWS’s decision to

determine the area that the Riverside fairy shrimp species occupies by identifying the

PCEs that exist on or near the place where the species is located and drawing a circle

around the entire geographic area where the PCEs exist results in a critical habitat

determination that is more expansive than the area in which the species is found, and

thus conflicts with the statute’s plain text. See id. Therefore, it is clear to this Court

that the manner in which the FWS designated the stock pond and the surrounding 56

acres as occupied critical habitat violates the APA. See Mayo Found. for Med. Educ. &

Research, 562 U.S. at 54; Shepherd, 652 F.2d at 1043.




                                             27
       In response, Defendants are quick to point out that this Court previously found

that “the FWS did not act arbitrarily or capriciously when it determined that endangered

Riverside fairy shrimp occupy the vernal pool on Subunit 5c and that the pool and the

surrounding watershed area are ‘critical habitat’ for that listed species within the

meaning of the ESA,” under either the occupied or unoccupied prong. Otay Mesa

Prop., 144 F. Supp. 3d at 69. (See also Defs.’ 2d Suppl. Br. at 5, 8–9 (describing this

Court’s prior holding).) The Court did make that finding. But it also expressly noted

that the record before the Court did not permit it to assess how the FWS had gone about

delineating the contours of the area beyond the pool that it deemed occupied critical

habitat. See Otay Mesa Prop., 144 F. Supp. 3d at 69. In any event, “a district court has

inherent authority to reconsider its interlocutory orders as justice requires[,]” United

States v. All Assets Held at Bank Julius, Baer & Co., Ltd., 315 F. Supp. 3d 90, 96

(D.D.C. 2018) (internal quotation marks and citation omitted), and this is especially so

with respect to findings that the Court initially (and mistakenly) considered immaterial

to the legal issue at hand. Indeed, in this case, it only became apparent after the hearing

was held and the supplemental briefs were filed that the FWS’s methodology had

improperly melded two distinct statutory steps—(1) identifying the area that a species

occupies and what the PCEs are, and (2) determining where the PCEs are located within

the occupied area. (See 2d Suppl. Br. Order at 4 (indicating that, “although this Court

has previously asserted that the distinction between ‘occupied’ and ‘unoccupied’ is

‘seemingly immaterial to the APA claim at hand[,]’ given the parties’ current

disagreement about the suitability of the methodology that the agency employed to

reach the critical habitat designation at issue here, it is now clear to the Court, that the




                                             28
‘occupied’ versus ‘unoccupied’ determination matters” (quoting Otay Mesa Prop., 144

F. Supp. 3d at 61) (alteration in original) (citation omitted)).

        Furthermore, this Court’s supplemental briefing order put the parties on notice

that the Court might need to revisit the issue of whether the acreage surrounding the

pond qualifies as “occupied” or “unoccupied” critical habitat. (See id. (explaining that

the question of whether the critical habitat designation violates the ESA “may turn on a

threshold issue that this Court did not reach when it considered the parties’ first round

of summary judgment briefs: whether and to what extent, per the ESA, the geographic

area surrounding the stock pond qualifies ‘occupied’ or ‘unoccupied’ terrain”).) Thus,

this Court rejects Defendants’ suggestion that the issue of whether all of Subunit 5c is

occupied has already been definitively resolved and is therefore not at issue in the

context of this briefing. (See Defs.’ 2d Suppl. Br. at 8 (“The Court has already upheld

FWS’ conclusion that [S]ubunit 5c is within the geographical area occupied by the

species at the time of listing.”) 7

        As explained above, this Court finds that the approach that the FWS has

espoused in its brief for designating the pond and the additional 56 acres of land as

“occupied” by relying on the PCEs is inconsistent with the ESA. By contrast, under a

permissible construction of the statute, the record evidence in this case establishes that

the Riverside fairy shrimp occupy the one-acre stock pond on Subunit 5(c) (see AR


7
   To the extent that any portion of this Court’s earlier ruling could be considered law of the case on the
issue of whether the Riverside fairy shrimp occupy the entirety of the designated area, this Court finds
it proper to exercise its discretion to revisit this issue here in light of the Court’s misunderstanding
about the agency’s arguments regarding its methodology. See Pepper v. United States, 562 U.S. 476,
506–07 (2011) (noting that the law of the case doctrine “directs a court’s discretion, it does not limit
the tribunal’s power” and that it “does not apply if the court is convinced that [its prior decision] is
clearly erroneous and would work a manifest injustice” (alteration in original) (internal quotation
marks and citation omitted)).



                                                    29
003806–11, 004784–817, 037261–76), and that two of the three PCEs that pertain to the

Riverside fairy shrimp—i.e., “ephemeral wetland habitat” (PCE 1) and “the topography

and soils that support ponding during winter and spring months” (PCE 3) (id 055645)—

exist throughout the entirety of that pond, such that the one-acre pond itself qualifies as

“the specific area[] within the geographical area occupied by the 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”

per the plain text of the section 1532(5)(A)(i) of Title 16 of the United States Code.

This means that the stock pond itself can be properly designated as “occupied” critical

habitat consistent with the ESA, and it also compels the conclusion that the FWS’s

extension of the “occupied” critical habitat designation to the entirety of Subunit 5(c)—

the additional 56 acres of land surrounding the stock pond where the species do not and

cannot exist but where the PCEs are present—was an unauthorized (i.e., arbitrary and

capricious) critical habitat determination that violated the APA.

       Alaska Oil and Gas Association v. Jewell, 815 F.3d 544 (9th Cir. 2016), does not

demand a different result. (See Defs.’ 2d Suppl. Br. at 20–21 (citing to Alaska Oil and

arguing that, “after determining that the stock pond was occupied, FWS appropriately

used the best available science to identify the areas around the pond that contain the

PCEs essential for the conservation of Riverside fairy shrimp to delineate the

boundaries for that area of ‘occupied’ critical habitat”).) In Alaska Oil, the question of

occupancy was not at issue, because the geographical areas that the agency designated

as occupied were indisputably within the polar bear’s range. See Alaska Oil, 815 F.3d

at 558 (noting that the FWS’s mapping methodology was “designed to capture a




                                            30
‘robust’ estimation of the inland extent of den use”). Instead, the dispute in that case

centered on whether the FWS has to establish, relative to the boundaries of the occupied

territory, “specifically where, within that area [each of the PCEs] were located.” Id. at

557. As relevant here, the species at issue in Alaska Oil was highly mobile and

indisputably moved throughout all of the territory that the agency had designated as

occupied. See id. at 559. Thus, the Ninth Circuit’s suggestion that the occupied critical

habitat determination is to be made with reference to the location of the PCEs under the

circumstances presented in that case does not answer the question of whether and to

what extent the threshold question of occupancy can be made with reference to the

PCEs given the static species at issue here.

       In short, while this Court recognizes that it can be “difficult to distinguish

between occupied and unoccupied areas due to the nature of vernal pools” as a general

matter because “[t]he size of a vernal pool . . . fluctuates from year to year, and in some

years, the pool itself may never form[,]” Home Builders Ass’n of N. Cal. v. U.S. Fish &

Wildlife Serv., S-05-0629, 2006 WL 3190518, at *14 (E.D. Cal Nov. 2, 2006), there is

simply no evidence in the instant record that the Riverside fairy shrimp have ever

occupied any part of Subunit 5(c) other than the one-acre stock pond, which is the only

vernal pool on that property. It is true that the statutory term “occupied” is ambiguous,

which means that the FWS generally has flexibility and discretion to interpret that term

and to apply it to the facts presented when it makes its critical habitat designation, but

the agency must exercise that discretion in a manner that is consistent with the plain

text of the statute, and the statute plainly requires the agency to identify the geographic

area that an endangered species “occupie[s]”—separate and apart from the PCEs—and




                                               31
then assess where the PCEs exist “within” that geographic area. 16 U.S.C.

§ 1532(5)(A) (i). Consequently, it is inconsistent with the methodology that the ESA

prescribes for the FWS to have defined the area that the Riverside fairy shrimp species

occupies (and by extension designate the occupied critical habitat for that species)

merely by locating the geographic area around and beyond the stock pond where the

PCEs exist (i.e., the entirety of Subunit 5(c)), and as a result, this Court concludes that

the agency’s occupied critical habitat determination violates the APA. State Farm Mut.

Auto. Ins. Co., 463 U.S. at 43.

       B.     The Unoccupied Critical Habitat Designation Violates The ESA And
              The APA Because The FWS Did Not Evaluate Whether Any Area
              Outside The Geographical Area Occupied By The Species Is Essential
              For Conservation Of The Species

       The ESA plainly “differentiates between ‘occupied’ and ‘unoccupied’ areas,

imposing a more onerous procedure on the designation of unoccupied areas by requiring

the Secretary to make a showing that unoccupied areas are essential for the

conservation of the species.” Ariz. Cattle Growers’ Ass’n, 606 F.3d at 1163. In other

words, while the designation of “occupied critical habitat” under the ESA turns on the

identification of the areas that the species occupies and where the PCEs exist within

those areas, the designation of “unoccupied critical habitat” requires a determination

that geographical areas that the species does not occupy “are essential for the

conservation of the species.” 16 U.S.C. § 1532(5)(A)(ii). Of course, this distinction

makes imminent sense, because the United States is a massive geographical area filled

with natural flora and fauna, and thus environmental laws such as the ESA “must

balance the oft-competing statutory policies of environmental protection and private

property rights.” Selkirk Conservation All. v. Forsgren, 336 F.3d 944, 965 (9th Cir.



                                             32
2003). To avoid overprotection of creatures to the detriment of landowners, Congress

decided to protect geographical areas that an endangered or threatened species actually

occupies when those areas contain features essential to conserve the species, see 16

U.S.C. § 1532(5)(A)(i), and beyond the geographical areas that such a species occupies,

only those areas that are in and of themselves essential to the conservation of the

species need to be preserved, see id. § 1532(5)(A)(ii). See Jaclyn Lopez, Biodiversity

on the Brink: The Role of “Assisted Migration” in Managing Endangered Species

Threatened with Rising Seas, 39 Harv. Envtl. L. Rev. 157, 170 (2015) (noting that

“[t]he designation of unoccupied critical habitat does not require that the Service

identify physical and biological features essential to the conservation of the species or

which may require special management considerations or protection, only that it is

essential for the conservation of the species”).

        When the FWS announced in the 2012 Rule that Subunit 5(c) is occupied critical

habitat for the Riverside fairy shrimp and would be designated as unoccupied critical

habitat in the alternative, see 77 Fed. Reg. 72089, the agency gestured to the required,

“essential for the conservation of the species” finding, id. at 72079, but did nothing

more to substantiate this conclusory finding than observe that the PCEs were present on

the land. (See infra.) 8 Thus, for the reasons explained below, the agency’s unoccupied



8
  The FWS appears to have made the alternative “unoccupied critical habitat” finding in response to the
D.C. Circuit’s decision in Otay Mesa Property, L.P. v. U.S. Department of the Interior, 646 F.3d 914
(D.C. Cir. 2011), wherein, as discussed supra, the Circuit reversed the FWS’s designation of 143 acres
of property that Otay Mesa owns as occupied critical habitat for the San Diego fairy shrimp. 646 F.3d
at 915. In consideration of the FWS’s argument that the property was essential to the conservation of
the species even if there was no evidence of occupancy, the Circuit panel acknowledged that the FWS
had the discretion to designate the property at issue as unoccupied critical habitat, but noted that if the
FWS opted to proceed in this manner, “then it must say so in its agency decision and justify that
determination.” Id. at 918. In light of this ruling, and “due to the lack of documentation of occupancy,
such as survey results prior to 1993, for the purposes of this rulemaking [the FWS] determine[d] that


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critical habitat designation is arbitrary and capricious, and in violation of the ESA, for

APA purposes.

        As an initial matter, it is important to recognize that “Congress did not define

‘essential’ but, rather, delegated to the Secretary the authority to make that

determination.” Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452,

464 (5th Cir. 2016) (internal quotation marks and citation omitted), cert. granted sub

nom. Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 138 S. Ct. 924, 924 (2018). But

as explained above, that alone does not mean that the FWS’s bald statement that these

are “areas essential for the conservation of the species” in the 2012 Rule has to be

accepted. See Nat’l Cable & Telecomms. Ass’n, 545 U.S. at 980. For an agency’s

decision to be upheld at the summary judgment stage when challenged under the APA,

the agency “must [have] examine[d] the relevant data and articulate[d] a satisfactory

explanation for its action including a ‘rational connection between the facts found and

the choice made.’” State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (quoting Burlington

Truck Lines v. United States, 371 U.S. 156, 168 (1962)); see also Bowman Transp., Inc.

v. Ark.-Best Freight Sys. Inc., 419 U.S. 281, 285 (1974) (making clear that the court

must “consider whether the decision was based on a consideration of the relevant

factors and whether there has been a clear error of judgment” (internal quotation marks

and citation omitted)).

        The “essential for the conservation of the species” finding that the FWS made

here falls far short of this standard. In the 2012 Rule, the FWS asserted that the

entirety of Subunit 5c qualifies as unoccupied critical habitat because “[t]hese areas are


these subunits also alternatively meet the definition of [unoccupied] critical habitat in section
3(5)(A)(ii) of the Act.” 77 Fed. Reg. 72082.


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essential for the conservation of the species, and a designation limited to areas

documented to have been occupied at the time of listing would be inadequate to ensure

the conservation of Riverside fairy shrimp.” 77 Fed. Reg. 72082. It appears that the

agency based this contention solely upon its finding that the relevant PCEs exist on the

land surrounding the stock pond, and not on an assessment of whether preservation of

this particular geographical area was necessary (i.e., “essential”) for conservation of the

shrimp cysts. See id. at 72073 (remarking in regard to the unoccupied designation of

Subunit 5c that the land has “[u]nique soils and habitat type; maintains current

geographical, elevational, and ecological distribution; [is a] disjunct habitat; [and]

protects existing vernal pool composition”). The agency’s manifest failure to consider,

much less determine, whether protection of all 56 acres was necessary for conservation

of the endangered species that is itself located in the one-acre stock pond cannot be

squared with the plain language of section 1532(5)(A))(ii) of Title 16 of the United

States Code, which requires the agency to do exactly that in order to make an

unoccupied critical habitat designation.

       Notably, the FWS does not deny that its “unoccupied critical habitat” designation

relied on the same methodology the agency had used to determine that Section 5(c)

qualifies as occupied critical habitat—the agency “focus[ed] . . . on the PCEs. . . . [and]

looked at where those elements were present surrounding stock the pond[,] [a]nd that’s

how they drew it.” (Hr’g Tr. at 47:7–16.) See also 77 Fed. Reg. 72082–83 (explaining

that the agency removed some areas from the scope of the area designated as “essential

to the conservation of Riverside fairy shrimp” in earlier rules because “they no longer

contain the physical or biological features or PCEs that are essential to the conservation




                                            35
of Riverside fairy shrimp”); id. at 72092 (discussing the features of Subunit 5c in

particular and concluding, on that basis, that this geographical area is “essential for the

conservation of Riverside fairy shrimp”). But the language of the relevant statute does

not permit reliance on the mere presence of pertinent biological features (PCEs) to

determine that an area qualifies as unoccupied critical habitat; instead, Congress has

quite clearly decided that the touchstone of unoccupied critical habitat (in contrast to

occupied critical habitat) is whether the area itself is “essential” to the conservation of

the species. 16 U.S.C. § 1532(5)(A)(ii); see also Cape Hatteras Access Pres. All., 344

F. Supp. 2d at 119 (holding that, when designating unoccupied critical habitat, “it is not

enough that the area’s features be essential to conservation, the area itself must be

essential”).

       Indeed, to make the unoccupied critical habitat designation based simply and

solely on a finding that the land at issue “contained necessary primary constituent

elements” (as the FWS has done here) “would be to nullify the distinction between

occupied and unoccupied land, a distinction Congress expressly included within the

ESA.” Home Builders Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F. Supp. 2d

1197, 1221 (E.D. Cal. 2003), abrogated in part on other grounds by Home Builders

Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010); see also

Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 994 (9th Cir. 2015) (upholding the

FWS’s designation of unoccupied critical habitat where PCEs were implicated, because

the FWS had “not designate[d] [the subunit at issue] as essential only because it

contains PCEs” but had also provided the sources for certain PCEs (emphasis added)).

Thus, this Court discerns a clear conflict between what Congress has prescribed and




                                             36
what the FWS has done to implement its statutory prescriptions in this case. See 5

U.S.C. § 706(2)(A) (requiring a court to “hold unlawful and set aside agency action,

findings, and conclusions found to be . . . not in accordance with law”).

       The FWS’s only cogent response to this conclusion is to point out that the ESA

directs the agency to utilize the “best scientific data available[,]” and that there are no

existing studies of the extent to which the land around the stock pond on Subunit 5(c)

actually supports the continued existence of the Riverside fairy shrimp species that

occupy the one-acre vernal pool. (Defs.’ 2d Suppl. Br. at 16–17.) Of course, this

statutory language says nothing about whether, and to what extent, the agency his

required to conduct a study prior to making the challenged critical habitat designation.

At most, the “best scientific data available” language indicates that Congress was aware

of the limits of scientific knowledge and ability, and thus has authorized the agency to

use only the best available information when it undertakes to make the necessary

findings for the purpose of making a critical habitat designation. To read that language

to authorize the agency to dispense with making the “essential for conservation of the

species” finding entirely not only renders section 1532(5)(A)(ii) of Title 16 of the

United States Code meaningless, but also clearly undermines Congress’s intent with

respect to requiring the agency to make such a finding at all. And the D.C. Circuit has

already addressed the mistaken contention that an agency has authority to act in the

absence of data regarding the scope of the watershed: “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.” Otay Mesa Prop., 646 F.3d at 918. This means that the FWS can




                                             37
take no comfort in the fact that it has not yet utilized its expertise to do the kinds of

scientific analysis that are needed to make a proper unoccupied critical habitat

designation; given the text of the statute, the fact that studies do not currently exist

cannot possibly mean that such analysis need not be done. That is, if the ESA’s

requirement that the unoccupied critical habitat designation be extended only to those

geographical areas that are “essential for conservation of the species” means anything,

then the agency that implements the ESA has to do what it takes to make the requisite

finding before it designates an area as unoccupied critical habitat pursuant to that

statute.

       The bottom line is this: there is no dispute that the scope of the area of

unoccupied habitat in the instant case was determined based on the existence and

location of the PCEs on Subunit 5(c), and not on any assessment of the extent of land

area that is actually essential to support the Riverside fairy shrimp, which is what the

ESA requires. Thus, the FWS’s conclusion that 56 acres of land around the one-acre

stock pond qualifies as unoccupied critical habitat turned solely on where PCEs were

co-located, rather than how much land was necessary to support the needs of the

Riverside fairy species (see Hr’g Tr. at 41:7–16), when the plain language of the statute

demands that the FWS undertake to make the latter determination. Such a conflict

bears the hallmark of arbitrary and capricious agency action under the APA. Cf., e.g.,

Pharm. Research & Mfrs. of Am. v. U.S. Dep’t of Health & Human Servs., 138 F. Supp.

3d 31, 54 (D.D.C. 2015) (finding that agency had violated the APA in issuing an

interpretive rule that was “contrary to the plain language of the statute”). What is more,

in the instant case, the FWS also “relied on factors which Congress has not intended it




                                             38
to consider,” and “entirely failed to consider an important aspect of the problem,” State

Farm Mut. Auto. Ins. Co., 463 U.S. at 43—namely, whether and to what extent the land

that comprises Subunit 5(c) is itself “essential” for the preservation of the stock-pond-

bound shrimp species.

       It may well be that, in the final (proper) analysis, all of the designated acres are

determined to be essential for the preservation of this endangered species, see U.S. Fish

& Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered Species Consultation

Handbook (Mar. 1998), at xix (noting that unoccupied critical habitat “may be

designated for an upstream area maintaining the hydrology of the species’ downstream

habitat”), and the Court takes no position as to whether a full hydrological analysis

would be necessary to determine what area surrounding the stock pond is essential, as

Otay Mesa asserts. “This Court of course ‘may not supply a reasoned basis for the

agency’s action that the agency itself has not given.’” Otay Mesa Prop., 646 F.3d at

917 (quoting State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 ). And here, the agency

has failed to articulate any rational reason for its finding that Subunit 5(c) is an

unoccupied area that is essential to the conservation of the Riverside fairy shrimp

species; therefore, the challenged critical habitat designation violates the ESA and

APA.

       C.     This Court Will Vacate The FWS’s Designation Of Otay Mesa’s
              Property As Critical Habitat For The Riverside Fairy Shrimp

       Finally, having decided that the FWS erred in delineating the critical habitat for

the Riverside fairy shrimp, the normal course of action would be for this Court to

vacate the FWS’s designation and remand the matter to the agency. See 5 U.S.C.

§ 706(2)(A) (directing a reviewing court to “hold unlawful and set aside agency action,



                                             39
findings, and conclusions [that it finds to be] arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law”); Advocates for Highway & Auto

Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005)).

However, the Court has some discretion on this front; indeed, “[a]n inadequately

supported rule . . . need not necessarily be vacated.” Allied-Signal, Inc. v. U.S. Nuclear

Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993); see 5 U.S.C. § 702

(providing that “[n]othing [in the APA’s judicial review provisions] affects . . . the

power or duty of the court to . . . deny relief on any . . . appropriate legal or equitable

ground”). (See also Defs.’ MSJ Mem. at 54 (noting this Court’s discretion and

requesting leave to submit “additional briefing regarding the appropriate remedy if it

rules in Plaintiffs’ favor on any of the issues raised in their claim for relief”).

       In determining whether to allow the challenged critical habitat designation to

stand pending agency action on remand, this Court must assess “‘the seriousness of the

order’s deficiencies (and thus the extent of doubt whether the agency chose correctly)

and the disruptive consequences of an interim change that may itself be changed.’”

Allied-Signal, 988 F.2d at 150–51 (quoting Int’l Union, United Mineworkers of Am. v.

Fed. Mine Safety & Health Admin., 920 F.2d 960, 967 (D.C. Cir. 1990)). Courts

regularly decline to exercise this discretion where an agency has committed substantive

errors, as opposed to procedural ones. See, e.g., Bldg. Indus. Legal Def. Found. v.

Norton, 231 F. Supp. 2d 100, 105 (D.D.C. 2002) (holding the FWS’s choice of

methodology in that case “constitute[d] serious substantive errors, not mere procedural

flaws, and hence warrant[ed] vacatur”); Nat’l Ass’n of Homebuilders v. Norton, 00-cv-

903, 2001 WL 1876349, at *3 (D. Ariz. Sept. 21, 2001) (vacating rule where the FWS’s




                                              40
“failure to comply with the statutory requirements [for] critical habitat designation is

more than a minor procedural error”); Endangered Species Comm. of the Bldg. Indus.

Ass’n of S. Cal. v. Babbitt, 852 F. Supp. 32, 41–43 (D.D.C. 1994) (declining to vacate

critical habitat designation where the agency’s error was procedural rather than

substantive).

       Under the circumstances presented here, the agency’s missteps pertaining to the

designation of critical habitat weighs in favor of vacatur. As this Court has explained

in detail, the designation of Otay Mesa’s property as critical habitat suffers from

substantive defects stemming from the FWS’s failure to delineate the area that the

species occupies properly, and that failure renders the occupied critical habitat

designation unsustainable. (See Part III.A, supra.) In addition, the agency acted

contrary to the statute and in an arbitrary and capricious fashion when it looked solely

to the presence of PCEs to determine what part of the area surrounding the stock pond

qualifies as unoccupied critical habitat and essentially ignored the statutory requirement

that it actually undertake an assessment of whether and to what extent the surrounding

area is “essential” to the conservation of the Riverside fairy shrimp species. (See Part

III.B, supra.)

       There is also no evidence that vacatur of the critical habitat designation at issue

here will necessarily be disruptive of, or threaten, the species. Cf. Home Builders

Ass’ns of N. Cal. v. Norton, 293 F. Supp. 2d 1, 4–5 (D.D.C. 2002). As has been

repeatedly explained, the Riverside fairy shrimp is listed as an endangered species and

the record demonstrates that that species currently occupies only the one-acre stock

pond. The listing alone provides substantial protection for the species, and vacatur of




                                            41
the erroneous critical habitat rule “will in no way disturb the considerable protections,

both civil and criminal, afforded to the [species] as a listed species under the ESA.”

Id.; see also Pub. Emps. for Envtl. Responsibility v. U.S. Fish & Wildlife Serv., 189 F.

Supp. 3d 1, 5 (D.D.C. 2016) (holding that, when determining whether to vacate agency

action, a court can consider “[t]he availability of these alternative measures” that will

mitigate potential environmental harms that could otherwise result from vacatur),

appeal dismissed, No. 16-5224, 2016 WL 6915561, (D.C. Cir. Oct. 31, 2016). Indeed,

in 2002, during prior proceedings involving this very species and critical habitat

determination, the FWS asked that the designation be vacated and the matter remanded

to the FWS to allow the agency to redo the economic analysis for the critical habitat,

and the agency specifically represented that “vacatur of the critical habitat designations

during the remand period will not compromise the conservation needs of the two

species” in light of the “host of regulatory protections beyond those found in Section 7”

that would protect the species “even absent critical habitat designation.” Bldg. Indus.

Legal Def. Found., 231 F. Supp. 2d at 106; see also Otay Mesa Prop., 646 F.3d at 918–

19 (vacating designation of Otay Mesa’s land as critical habitat for the San Diego fairy

shrimp).

       Thus, in light of (1) the clear substantive flaws in the methodology that the FWS

used to designate 50-plus acres of Otay Mesa’s property as a critical habitat for the

Riverside fairy shrimp, and (2) “the overlapping regulatory structures that protect the

species and their unique vernal pool and riparian habitats,” Bldg. Indus. Legal Def.

Found., 231 F. Supp. 2d at 107, as well as the absence of any evidence of potential

significant disruptive consequences arising from vacatur under the circumstances




                                            42
presented here, this Court will vacate the designation of Subunit 5(c) as a critical

habitat for the Riverside fairy shrimp and remand this matter to the FWS for further

proceedings consistent with this Opinion.


IV.    CONCLUSION

       The FWS’s designation of Otay Mesa’s property as either occupied or

unoccupied critical habitat for the Riverside fairy shrimp was arbitrary and capricious

and in violation of governing law for the reasons explained above. Accordingly, as

stated in the accompanying order, Otay Mesa’s renewed motion for summary judgment

will be GRANTED, and Defendants’ renewed motion for summary judgment will be

DENIED. Moreover, the existing rule designating Otay Mesa’s property as critical

habitat for the Riverside fairy shrimp will be VACATED, and this matter will be

REMANDED to the FWS for further rulemaking consistent with this ruling.



DATE: September 25, 2018                  Ketanji Brown Jackson
                                          KETANJI BROWN JACKSON
                                          United States District Judge




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