May 17, 2001

Contact:
Mr. John Buse, EDC: (805) 677-2570
Mr. Neil Levine, Earth Justice Legal Defense: (303) 871-6996

FAIRY SHRIMP LISTING UPHELD BY D.C. CIRCUIT

CALIFORNIA - In a decision that spells victory for citizens concerned with species extinction, the Federal Court of Appeals on May 8th upheld the listing of four species of California vernal pool shrimp (* collectively referred to as fairy shrimp) as endangered or threatened under the Endangered Species Act (ESA). The Building Industry Association (BIA) had challenged the 1994 listing of these species: the vernal pool fairy shrimp, Conservancy fairy shrimp, longhorn fairy shrimp, and vernal pool tadpole shrimp. The Environmental Defense Center (EDC), along with the Butte Environmental Council (BEC), intervened in the BIA's lawsuit in order to defend the listing and to force Fish and Wildlife Service to designate critical habitat, another requirement of the ESA. EDC prevailed on both accounts, while a subsequent appeal by the BIA was denied. The court rejected BIA's claims and ordered FWS to maintain the listings and to designate critical habitat.

"We are very happy with this decision which ends the drawn-out legal battle over ESA protection for California's unique vernal pool wetlands and the species that inhabit them," said John T. Buse, an attorney with the Ventura branch of the Environmental Defense Center.

This decision was a result of a 1994 EDC lawsuit to list the species, and caps a history of attempts by the BIA to prevent the fairy shrimp from getting permanent protection under the ESA. After the shrimp were listed in 1994 as endangered (Conservancy, longhorn, and vernal pool tadpole) and threatened (vernal pool fairy), the BIA sued the Fish and Wildlife Service for improperly listing the species. EDC and BEC intervened, both to defend the FWS listing action and, through a separate lawsuit, to force FWS to designate critical habitat, another requirement under the Endangered Species Act. A District Court decision was rendered on March 31, 1999, and FWS was ordered to not only keep the fairy shrimp listed, but to also designate critical habitat for the species.

Fairy shrimp reside in vernal pools, shallow depressions that fill with rainwater in fall and winter, evaporating in spring. The pools serve as important habitat for migrating birds and various invertebrate fish species. Vernal pool complexes are found in California and southern Oregon, and have been largely decimated due to development pressures. Due to the actual and threatened destruction of vernal pools in California, the Fish and Wildlife Service in 1992 proposed to list the shrimp species under the Endangered Species Act.

The recent decision is even more important in light of a newly proposed UC campus, UC Merced, where the presence of the largest remaining vernal pool complexes occupied by legally protected fairy shrimp have been instrumental in prompting UC officials to look at alternative development strategies in order to protect the vernal pools that the shrimp inhabit.

"Vernal pool habitat is under tremendous development pressure throughout California," said Neil Levine of Earth Justice Legal Defense. "After a recent U.S. Supreme Court decision undermining protection for vernal pools, the continued listing of fairy shrimp is vital for protecting these precarious ecosystems."

The final decision was written by Circuit Judge Laurence Silberman, who was joined by Judges David Sentelle and Karen Henderson. Neil Levine, now with Earth Justice Legal Defense, represented the EDC at the time of the original lawsuit.

The Environmental Defense Center is a non-profit, public interest environmental law firm serving California's Central Coast. Since 1977, EDC has provided public education, organizing, advocacy, and legal services to community groups dedicated to environmental quality and health.

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