Endangered Species Act can be grim fairy tale.

(Following is a "fairy tale" about a case in California that is currently being debated in Washington. The moral of the story: even though this takes place in a land far, far away, it could happen in our own backyard.)

Once upon a time, in a great many mud holes and ditches in Northern California, lived the fairy shrimp.

Not to be confused with the crustaceans you meet in a tasty plate of scampi, this shrimp is an inedible, half-inch-long, tadpole-like creature. Its distant cousin is the "sea monkey," once sold in comic books, which comes alive when placed in water.

Luckily, kind genies at the U.S. Fish and Wildlife Service in California protected the fairy shrimp, and rubbed their magic lamps to make the big, bad ogres leave it alone. Ogres like the public school district in Rescue in El Dorado County, which wanted to add new classrooms and parking lots to its 10-acre site. Or the getaway ranch where troubled youth could ride and hike in Sacramento, OR, a housing development planned for 1,225 acres in Rancho Cordova, not to mention county efforts to build baseball and softball fields on the former Mather Air Force Base.

Poof, went the genies, and the nasty ogres went away or got their just desserts. The school was delayed many months in its desperately needed $46 million expansion plan. The landlord of the ranch, Granite Construction Corp., was forced to close because the land it intended to mine was declared off limits, as it was a prime fairy shrimp swimming hole. The Saris-Regis Group, ordered to reserve 465 acres of its 1,225 acres for fairy shrimp habitat - and waiting for years for approval to build on the rest of its site - predicts protecting the shrimp will add over $6,000 to the cost of each home in its project.

Asked to explain, the genies pointed to a magic document, the Endangered Species Act, which told them to protect the shrimplets for all eternity, starting in September 1994. Of course, because the document was magic, it needed no research to back up claims that the tiny creatures were in danger of extinction and lived only in "vernal pools," wetlands caused by rainy seasons, at the edge of the Sierra Mountains. However, there was a cryptic allusion to "an estimated six million acres of vernal pools in the Central Valley at the time Europeans arrived in California" -the heyday of the fairy shrimp empire - with 90 percent destroyed by 1970, a claim based upon a paper by a graduate student in botany. The genies later admitted that as many as 40 percent of the vernal pools survived and that the shrimp called other places home, as well. (See, we said it was magic.)

A contender for Ripley's "Believe it or Not," this case is now before the U.S. Court of Appeals for the District of Columbia Circuit. Called BIA of Superior California v. Babbitt, the lawsuit was originally filed by the local Building Industry Association, Sacramento Chamber of Commerce and Sacramento Farm Bureau in the U.S. District Court in 1995.

A detailed study by Sugnet & Associates, an environmental consulting firm, which found over 1,200 vernal pools filled with fairy shrimp; comments from biologists that a single pool can contain over 800,000 eggs; and reassurance from the Army Corps of Engineers that every effort is made to avoid or minimize impacts to vernal pools all were ignored by the U.S. Fish and Wildlife Service.

By issuing a report which adds this good-for-nothing creature to its endangered species list but sidesteps whether its numbers have truly declined, and usurping the role of the Army Corps of Engineers, state and local agencies (who have authority over the wetlands), the Fish & Wildlife Service makes the Endangered Species Act into a travesty that merely lends fuel to efforts to dismantle the Act in its entirety.

But maybe the fairy shrimp will win in Washington sometime soon, thanks to their genie protectors. Who are we, mere humans, to stand in their way?

(R. Randy Lee is managing partner of Lee & Amtzis LLP, a New York law firm. He is chairman of National Association of Home Builders' 1999 Legal Action Committee and its Legal Action Network for Development Strategies (LANDS) Steering Committee, a program whose goal is 10 protect individual property rights and to ensure equal access to justice for private citizens.)