BIA Appeal Denied

Wetland Species Win Again in Court

A May 8, 2001 decision by the District of Columbia Court of Appeals affirmed the protection of four federally listed fresh water crustaceans under the Endangered Species Act (ESA). Two California nonprofits, the Butte Environmental Council (BEC) and the Environmental Defense Center of Santa Barbara (EDC), have supported the listing since April of 1995 when the California Building Industry Association sued the Interior Department to have the listing decisions reversed. BEC is elated that the groups efforts have again contributed to a clear judicial ruling that enforces the ESA and has a tremendous impact on regional vernal pool preservation!

The appeal stemmed from a July 25, 1997 ruling also supporting the federal listing of the species. Judge Friedman's comments in 1997 quote the U.S. Supreme Court's broad interpretation of the ESA in1978, clearly articulates the importance of the ESA (signed into law by Richard M. Nixon in 1973): "The legislative proceedings in 1973 are ...replete with expressions of concern over the risk that might lie in the loss of any endangered species. Typifying these sentiments is the Report of the House Committee on Merchant Marine Fisheries [stating] 'The value of this genetic heritage is, quite literally, incalculable...From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations.'" [Emphasis in the original opinion].

Crustacean Lawsuit History

The Fish and Wildlife Service (Service) was petitioned on 11/19/90 to list four vernal pool shrimp as endangered species. A fifth shrimp was proposed for listing in April of 1991. September 18, 1994 the conservancy fairy shrimp, longhorn fairy shrimp, and vernal pool tadpole shrimp were listed as endangered species with the vernal pool fairy shrimp listed as a threatened species (the conservancy fairy shrimp, the tadpole shrimp, and the vernal pool fairy shrimp are found locally). On April 17 1995, the Building Industry Association filed a complaint in the U.S. District Court for the District of Columbia which stated that the Interior Department relied on "questionable scientific data" to support the listing. BIA attorneys have stated, "If you disturb mud puddles on your private property without first proving that no fairy shrimp are impacted, you could be subject to civil and criminal penalties. It's a ridiculous situation."

BEC and the EDC vehemently disagreed with such inflammatory attempts to discredit the listings and joined the Interior Department as intervenors in the suit in support of the listings. The Service was required to base its listing determination on analysis of shrimp populations and found four of them in peril. The Service found that the vernal pool fairy shrimp is imperiled by habitat loss from construction activities and degradation to the extent that 28 of the 32 known populations face one or more of the following threats: urban expansion, water and flood control projects, highways, utility work, overgrazing, and off road vehicle use. The vernal pool tadpole shrimp is known to exist in 18 populations in the Central Valley with 14 of them imperiled. Only four populations of longhorn fairy shrimp have been found along the eastern margin of the central coast range and there are threats to all of them. The Conservancy fairy shrimp is found in only six populations with four of them in peril. The species are so diminished because the Central Valley lost 95% of its original 4 million acres of wetlands in the last 150 years leaving only 200,000 acres (Central Valley Wetland Water Supply Investigations: Administrative Draft Report. United States Department of the Interior, U.S. Fish and Wildlife Service, Sacramento, CA. May 5, 2000. p.1-5).

This column originally appeared in June 2001 in the Chico Examiner.