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Tucson Herpetologicl, et al v. Kempthorne, et al - Document No. 90

Tucson Herpetologicl, et al v. Kempthorne, et al - Document No. 90

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Published by Justia.com
ORDER that Plas' Motion to Vacate Portions of the August 30, 2005 Order, 84 and Plas' Motion for Entry of Final Judgment, 85 are denied. FURTHER ORDERED that the provision of the court's previous order, 68 that directs the clerk to terminate the action is vacated and this case is re-opened. Case Reopened. FURTHER ORDERED that Pla may file a supplemental complaint by October 26, 2006, pursuant to Federal Rule of Civil Procedure 15(d) challenging the 2006 Finding on grounds n ot rejected in the court's previous orders. Dfts shall file aresponsive pleading within the time provided by Federal Rule of Civil Procedure 12(a)(1). FURTHER ORDERED that if Plas fail to file a supplemental complaintwithin the time permitted by this Order, any challenges to the 2006 Finding shall be deemed abandoned and a final judgment will be entered thereafter.FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure25(d)(1), Dft Dick Kempthorne is substituted for Gale Norton as Secretary of theInterior, and Defendant H. Dale Hall is substituted for Matthew Hogan as Director of the U.S. Fish and Wildlife Service. Dirk Kempthorne, and H. Dale Hall added. Gale Norton terminated.. Signed by Judge Neil V Wake on 9/27/06. (KMG, ) 2:2004cv00075 Arizona District Court
ORDER that Plas' Motion to Vacate Portions of the August 30, 2005 Order, 84 and Plas' Motion for Entry of Final Judgment, 85 are denied. FURTHER ORDERED that the provision of the court's previous order, 68 that directs the clerk to terminate the action is vacated and this case is re-opened. Case Reopened. FURTHER ORDERED that Pla may file a supplemental complaint by October 26, 2006, pursuant to Federal Rule of Civil Procedure 15(d) challenging the 2006 Finding on grounds n ot rejected in the court's previous orders. Dfts shall file aresponsive pleading within the time provided by Federal Rule of Civil Procedure 12(a)(1). FURTHER ORDERED that if Plas fail to file a supplemental complaintwithin the time permitted by this Order, any challenges to the 2006 Finding shall be deemed abandoned and a final judgment will be entered thereafter.FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure25(d)(1), Dft Dick Kempthorne is substituted for Gale Norton as Secretary of theInterior, and Defendant H. Dale Hall is substituted for Matthew Hogan as Director of the U.S. Fish and Wildlife Service. Dirk Kempthorne, and H. Dale Hall added. Gale Norton terminated.. Signed by Judge Neil V Wake on 9/27/06. (KMG, ) 2:2004cv00075 Arizona District Court

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Published by: Justia.com on Apr 30, 2008
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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Tucson Herpetological Society, et al.,
Plaintiffs,
vs.

Dirk Kempthorne, in his official capacity as Secretary of the Interior; and H. Dale Hall, in his official capacity as Director of the United States Fish and Wildlife Service,

Defendants.
)))))))))))
)))))
No. CV-04-0075 PHX-NVW
ORDER

Pending before the court are Plaintiffs' Motion to Vacate Portions of the August 30, 2005 Order, Doc. # 84; Plaintiffs' Motion for Entry of Final Judgment, Doc. # 85; Defendants' Response, Doc. # 87; and Plaintiffs' Replies, Doc. # 88 and # 89.

The court will deny both motions and allow Plaintiffs to file a supplemental pleading under Federal Rule of Civil Procedure 15(d) in which they may raise any and all challenges to the administrative action at issue in this case that were not previously rejected by the court. In the alternative, Plaintiffs may decide not to challenge Defendants' most recent listing decision. In that case, the court will enter a final judgment fully disposing of all claims and parties from which an appeal will lie.

Case 2:04-cv-00075-NVW Document 90
Filed 09/28/2006 Page 1 of 12
Tucson Herpetologicl, et al v. Kempthorne, et al
Doc. 90
Dockets.Justia.com
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1For a discussion of the statutory and regulatory background of this case, see Order,
Doc. # 59, 1-6.
- 2 -
I.
Background

This dispute centers upon the continued viability of the flat-tailed horned lizard ("FTHL"), a small, cryptically colored lizard that is well suited to the harsh conditions of the western Sonoran desert but has struggled to adapt to environmental degradation in the areas of southern California, southwestern Arizona and northwestern Mexico that make up its historic range.Defenders of Wildlife v. Gale Norton, 258 F.3d 1136, 1137 (9th Cir. 2001). Among the most threatening of the changes in the lizard's habitat, are the filling of the Salton Sea, the conversion of arid desert into productive agricultural land and the growth of urban areas around Yuma, Arizona, and El Centro, California.Id. The Fish and Wildlife Service ("FWS" or "Service") published a proposed rule in November, 1993, to list the FTHL as a "threatened species" pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. \u00a7\u00a7 1531

et seq., a designation that would require the Service to take action to prevent the extinction
of the FTHL and provide for the lizard's recovery if made final.1Proposed Rule to List the
[FTHL] as Threatened, 58 Fed. Reg. 62624.

However, in July, 1997, the FWS withdrew its proposal to list the FTHL as threatened, citing a lack of data conclusively establishing a significant decline in the lizard's population, the mitigation of some of the threats to the lizard's habitat since the issuance of the proposed rule, and the existence of a FTHL conservation agreement ("Conservation Agreement") developed by representatives from federal, state and local agencies in support of its decision. Withdrawal of the Proposed Rule to List the [FTHL] as Threatened, 62 Fed. Reg. 37852. The Service's final de-listing decision was then challenged by Plaintiffs and ultimately vacated by the Court of Appeals for the Ninth Circuit for failure to properly delineate the lizard's historic range and assess the impact of the Conservation Agreement upon that range.Defenders of Wildlife, 258 F.3d 1136.

Case 2:04-cv-00075-NVW Document 90
Filed 09/28/2006 Page 2 of 12
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- 3 -

In purported compliance with the Ninth Circuit's mandate on remand, the Service again withdrew the proposed listing of the FTHL as a threatened species under the ESA in January of 2003 ("2003 Finding"). Withdrawal of the Proposed Rule to List the [FTHL] as Threatened, 68 Fed. Reg. 331. Plaintiffs then mounted a second challenge to the FWS's decision in October, 2003, arguing in a motion for summary judgment before this court that the Service's final determination violated the Ninth Circuit's holding inDefenders of Wildlife, as well as the general provisions of the ESA.

(Doc. # 59, 7.)

In its August, 2005 order, this court ruled that the FWS's withdrawal of the proposed rule violated the ESA as well as the Ninth Circuit's remand order by "failing to evaluate the lizard's lost habitat and whether that habitat was a significant portion of the range." (Doc. # 59, 15.) The court then vacated the January, 2003 withdrawal of the proposed listing of the FTHL, reinstated the 1993 proposed listing, and remanded to the agency for a new final listing decision. (Doc. # 68, 2.) Significantly, the court limited the scope of its remand order to the "the matters on which the court's August 30, 2005 Order found the January 3, 2003 Withdrawal unlawful." (Id.) The court unequivocally rejected all of Plaintiffs' other attacks upon the legal sufficiency of the FWS's January, 2003 action, specifically upholding as within its authority the Service's analysis of individual geographic areas, reliance on future and voluntary conservation efforts, consideration of the Conservation Agreement, use of population data, and decision not to credit data suggesting a link between off-highway vehicle use and the decline in FTHL population.

The Service responded to the court's 2005 Order by publishing a new withdrawal of the proposed listing of the FTHL in June of 2006 ("2006 Finding"). Withdrawal of the Proposed Rule to List the [FTHL] as Threatened, 71 Fed. Reg. 36745. The "sole purpose" of the latest FWS decision was to address the lost historical habitat and significant portion of the FTHL range issues that were the subject of this court's August, 2005 Order. 71 Fed. Reg at 36749. The Service explicitly incorporated the balance of the analyses and conclusions contained in its previous 2003 withdrawal by reference.Id. After review of the best scientific and commercial data available, and upon selection of the "available recorded

Case 2:04-cv-00075-NVW Document 90
Filed 09/28/2006 Page 3 of 12

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