73 F.3d 867 (9th Cir. 1995), 95-56255, Environmental Defense Center v. Babbitt

Docket Nº:95-56255.
Citation:73 F.3d 867
Party Name:95 Cal. Daily Op. Serv. 9368, 95 Daily Journal D.A.R. 16,341 ENVIRONMENTAL DEFENSE CENTER, a non-profit corporation, Plaintiff-Appellee, v. Bruce BABBITT, Secretary of the Interior; Mollie Beattie, Director, U.S. Fish and Wildlife Service, Defendants-Appellants.
Case Date:December 11, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 867

73 F.3d 867 (9th Cir. 1995)

95 Cal. Daily Op. Serv. 9368,

95 Daily Journal D.A.R. 16,341

ENVIRONMENTAL DEFENSE CENTER, a non-profit corporation,

Plaintiff-Appellee,

v.

Bruce BABBITT, Secretary of the Interior; Mollie Beattie,

Director, U.S. Fish and Wildlife Service,

Defendants-Appellants.

No. 95-56255.

United States Court of Appeals, Ninth Circuit

December 11, 1995

Argued and Submitted Nov. 13, 1995.

Page 868

Neil Levine, Environmental Defense Center, Santa Barbara, California, for plaintiff-appellee.

Lynn Penman, United States Department of Justice, Washington, D.C., for defendants-appellants.

Appeal from the United States District Court for the Central District of California.

Before: FLETCHER, CANBY and HAWKINS, Circuit Judges.

FLETCHER, Circuit Judge:

Defendants Bruce Babbitt, Secretary of the Interior, and Mollie Beattie, Director of

Page 869

the Fish and Wildlife Service (collectively "the Secretary"), appeal from the district court's grant of summary judgment in favor of the plaintiff, Environmental Defense Center ("EDC"), in EDC's action to compel the Secretary to make a final determination on a petition to list the California red-legged frog as an endangered species pursuant to the Endangered Species Act. The Secretary admits that he failed to make a final determination on the red-legged frog by the statutory deadline. He contends, however, that he currently is unable to do so because Public Law 104-06 rescinds funding for the making of a final determination that a species is endangered. Although we agree with the district court that the appropriations rider does not repeal or modify the Endangered Species Act, we find that the Secretary currently is unable to comply with his listing duty under the Act due to the unavailability of funds. Therefore, we vacate and remand for the district court to modify its order and judgment so that the Secretary's compliance is delayed until a reasonable time after appropriated funds are made available.

I.

The history of the petition to list the California red-legged frog as an endangered species and the Secretary's repeated failures to take timely action in this case are undisputed.

Congress enacted the Endangered Species Act of 1973 ("ESA"), as amended, 16 U.S.C. Secs. 1531-1544, to ensure the protection and conservation of threatened and endangered species. 16 U.S.C. Sec. 1531(b). The ESA requires the Secretary of Interior to promulgate by regulation a list of those species which are either threatened or endangered, according to specified statutory criteria. Id. Sec. 1533(a)(1).

Drs. Mark R. Jennings, Marc P. Hayes, and Dan C. Holland filed a petition to list the California red-legged frog as an endangered species. Section 4 of the ESA sets forth a time-table for taking action on species petitioned for listing. Within twelve months of receiving a petition that presents substantial information, the Secretary must determine and publish a finding that the listing is warranted, that it is not warranted, or that it is warranted but precluded due to work on other pending listing proposals. Id. Sec. 1533(b)(3)(B).

In this case, the Secretary failed to meet the 12-month statutory deadline. Consequently, EDC filed suit. On July 19, 1993, the Secretary published a finding on the petition to list the California red-legged frog. 58 Fed.Reg. 38553 (July 19, 1993). EDC dismissed the suit pursuant to a settlement agreement which required the Secretary to publish a proposed rule to implement the listing of the California red-legged frog by November 1, 1993.

The Secretary failed to meet the November 1, 1993 deadline. EDC filed a second suit in January 1994 to compel the Secretary to publish a proposed rule. On February 2, 1994, the Secretary published a proposed rule that the red-legged frog be...

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