Mount Graham Red Squirrel v. Yeutter, s. 89-16138

• Decision Date: 09 April 1991
• Docket Number: 90-15400,Nos. 89-16138,90-16125 and 90-16172,s. 89-16138
• Citation: 930 F.2d 703
• Parties: MT. GRAHAM RED SQUIRREL, (Tamiasciurus hudsonicus grahamensis), an Endangered Species, Sierra Club, a Non-Profit Corporation, National Audubon Society, a Non-Profit Corporation, National Wildlife Federation, a Non-Profit Association, Arizona Wildlife Federation, a Non-Profit Corporation, Maricopa Audubon Society, a Non-Profit Association, Tucson Audubon Society, a Non-Profit Association, Prescott Audubon Society, a Non-Profit Association, Yuma Audubon Society, a Non-Profit Association, Northern Arizona Audubon Society, a Non-Profit Association, Defenders of Wildlife, Non-Profit Organization, Wayne Woods, an Individual, Plaintiff-Appellant, v. Clayton YEUTTER, in His Official Capacity as Secretary of Agriculture, F. Dale Roberton, in His Official Capacity as Chief Forester, U.S. Forest Service, David F. Jolly, in His Official Capacity as Regional Forester for the Southwestern Region, Manuel Lujan, in His Official Capacity as Secretary of the Interior, Steven Robinson, in His Official Capacity as Interim Director of the U.S. Fish and Wildlife Service, Defendant-Appellee, and State of Arizona Board of Regents, University of Arizona, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 703

930 F.2d 703

MT. GRAHAM RED SQUIRREL, (Tamiasciurus hudsonicus grahamensis), an Endangered Species, Sierra Club, a Non-Profit Corporation, National Audubon Society, a Non-Profit Corporation, National Wildlife Federation, a Non-Profit Association, Arizona Wildlife Federation, a Non-Profit Corporation, Maricopa Audubon Society, a Non-Profit Association, Tucson Audubon Society, a Non-Profit Association, Prescott Audubon Society, a Non-Profit Association, Yuma Audubon Society, a Non-Profit Association Northern Arizona Audubon Society, a Non-Profit Association Defenders of Wildlife, Non-Profit Organization, Wayne Woods an Individual, Plaintiff-Appellant, v. Clayton YEUTTER, in His Official Capacity as Secretary of Agriculture, F. Dale Roberton, in His Official Capacity as Chief Forester, U.S. Forest Service, David F. Jolly, in His Official Capacity as Regional Forester for the Southwestern Region, Manuel Lujan, in His Official Capacity as Secretary of the Interior, Steven Robinson, in His Official Capacity as Interim Director of the U.S. Fish and Wildlife Service Defendant-Appellee, and State of Arizona Board of Regents, University of Arizona, Defendant-Intervenor-Appellee.

Nos. 89-16138, 90-15400, 90-16125 and 90-16172.

United States Court of Appeals, Ninth Circuit.

April 9, 1991.

Mark Hughes, Sierra Club Legal Defense Fund, Denver, Colo., for plaintiffs-appellants.

M. Alice Thurston, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Daivid C. Todd, Patton, Boggs & Blow, Washington, D.C., for defendant-intervenor-appellee.

William Perry Pendley, Mountain States Legal Foundation, Denver, Colo., for applicant-in-intervention-appellant.

Appeal from the United States District Court for the District of Arizona (Tucson).

Before TANG, FLETCHER and REINHARDT, Circuit Judges.

ORDER

On June 4, 1990, the district court granted summary judgment to the defendants on seven of plaintiffs' nine claims. The first claim sought to preclude further construction on Mount Graham on the basis that the Forest Service is required to reinitiate formal consultation with the Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act. The other claims on which the district court granted summary judgment stated that the Forest Service had violated the National Forest Management Act by failing to maintain a minimum viable population of red squirrels, that the Fish and Wildlife Service had violated section 4 of the Endangered Species Act by failing to designate critical habitat in a timely manner, and that the Forest Service had violated section 9 of the Endangered Species Act by facilitating a dramatic population decline of the Mount Graham red squirrel. The only claims not affected by the summary judgment order were claims 5 and 9, which involved compliance with the terms and conditions of the Arizona-Idaho Conservation Act.

The plaintiffs appealed from the grant of partial summary judgment (the August 2 appeal). Then, on August 27, they moved, in the district court, for a preliminary injunction barring further construction, on a number of grounds. The district court denied the motion without holding an evidentiary hearing, stating that it lacked jurisdiction because several of plaintiffs' claims were already on appeal. In doing so, the district court failed to consider the two claims that were not on appeal, namely claims 5 and 9. Claim 5 alleged that the Forest Service had violated the provisions of the Arizona-Idaho Conservation Act by failing to implement the terms and conditions of Reasonable and Prudent Alternative Three of the Biological Opinion. Specifically, p...