The D.C. Circuit Court of Appeals has invalidated a rule designating 143 acres of valuable commercial property in San Diego, California as critical habitat for an endangered species —the San Diego fairy shrimp. Describing the endangered fairy shrimp as a crustacean about the size of an ant and a lifespan of 30 days, the appellate court based its ruling on the U.S. Fish and Wildlife's failure to demonstrate that the land designated was in fact “occupied,” as required by the Endangered Species Act. The court noted that the agency had erroneously based its critical habitat designation on an isolated sighting of four fairy shrimp found in a tire rut on a heavily travelled dirt road. That was the only sighting, despite numerous visits to the property both before and after the one isolated sighting. The agency had tried to bolster its slim to none evidence for the presence of fairy shrimp by pointing to the finding of Riverside fairy shrimp on the property, speculating that some of that fairy shrimp could be “presumed” to be San Diego fairy shrimp. The court of appeals concluded that presumed occupied was not the same as actually occupied.
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