As previously reported, in 2013 Otay Mesa Property, L.P. sued the U.S. Department of Interior in federal district court for the District of Columbia, arguing that designating 57 acres of their commercial property in San Diego County as critical habitat for the endangered Riverside fairy shrimp was unlawful because:  (1) the land did not meet the statutory definition of critical habitat under the Endangered Species Act; (2) the Fish and Wildlife Service relied on a flawed economic analysis; and (3) the Government did not undertaken an analysis under the National Environmental Policy Act (NEPA) (see following article discussing NEPA reform).

On September 25, 2018, the district court granted Otay Mesa’s motion for summary judgment and denyed the Government’s cross motion. The Court held although there was a one-acre vernal pool on the property (which the owner conceded Fish & Wildlife had properly designated as critical habitat for the Riverside fairy shrimp), there was no indication that the species had ever been located anywhere else on Plaintiffs’ property outside that pool.  The Court further found that the Government had failed to make the required findings to support designating the land as unoccupied critical habitat—a finding that the land was essential to the conservation of the species.

Following this decision, the Government indicated its intention to pursue an appeal to the D.C. Circuit.  Ultimately, however, the Government agreed to abandon its appeal, and the parties entered into a stipulation of dismissal entered on February 19, 2019, bringing this case to a successful close for Otay Mesa.

Read more about this litigation.