Center for Biological Diversity et al v. Salazar et al

Filing 18

STIPULATION And ORDER To Dismiss Claims, signed by Judge Oliver W. Wanger on 4/20/2010. It is STIPULATED, and agreed to by and between Plaintiffs and Ken Salazar, Secretary of the U.S. Department of the Interior, and the Service ("Defendants&qu ot;) that publication of the 12-month finding renders Plaintiffs' claims for injunctive and declaratory relief in this action moot. The parties respectfully request an order from this Court dismissing such claims with prejudice. CASE CLOSED. (Scrivner, E)

JUSTIN AUGUSTINE (CA Bar No. 235561) LISA T. BELENKY (CA Bar No. 203225) Center for Biological Diversity 351 California St., Ste. 600 San Francisco, CA 94104 Telephone: [phone] x 307 Facsimile: [phone] Attorneys for Plaintiffs IGNACIA S. MORENO, Assistant Attorney General JEAN E. WILLIAMS, Section Chief DANIEL J. POLLAK, Trial Attorney Environment & Natural Resources Division U.S. Department of Justice Benjamin Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Telephone: [phone] Facsimile:[phone] Attorneys for Defendants

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION CENTER FOR BIOLOGICAL DIVERSITY, and THE BAY INSTITUTE, Plaintiffs, v. KEN SALAZAR, Secretary of the Interior and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants. __________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 1:09-CV-02092-OWW-DLB

Stipulation and Order to Dismiss Claims

WHEREAS, the U.S. Fish and Wildlife Service ("Service") listed the delta smelt as a threatened species on March 5, 1993. See 73 Fed. Reg. 39,639, 39,640 (July 10, 2008). WHEREAS, on March 9, 2006, the Service received a petition, dated March 8, 2006, from the Center for Biological Diversity, The Bay Institute, and the Natural Resources Defense Council to reclassify the listing status of the delta smelt from threatened to endangered status. Id. WHEREAS, On July 10, 2008, the Service published a 90-day finding in the Federal Register, as required by 16 U.S.C. § 1533(b)(3)(A), which concluded that the petition presented

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"substantial information to indicate . . . that reclassification of delta smelt from threatened to endangered may be warranted" and that the Service would accordingly initiate a status review of the species. Id. at 39,643. WHEREAS, on November 13, 2009, the Center for Biological Diversity and The Bay Institute ("Plaintiffs") filed their Complaint in the above-captioned case under the ESA citizen suit provisions at 16 U.S.C. § 1540(g)(1)(C). Plaintiffs' Complaint alleged that the Service had missed a mandatory deadline to issue a finding as to whether the petitioned-for reclassification of the delta smelt was warranted, not warranted, or warranted but precluded by other listing priorities, pursuant to 16 U.S.C. § 1533(b)(3)(B). WHEREAS, Plaintiffs' lawsuit in this action sought declaratory relief and an injunction compelling issuance of the 12-month finding. WHEREAS, on April 7, 2010, the Service issued a 12-month finding regarding the petition to reclassify the delta smelt at 75 Fed. Reg. 17,667 ("12-month Finding"). WHEREAS, on April 12, 2010, this Court issued an Order to Show Cause re Dismissal ordering the parties to show cause as to why the case should not be dismissed as moot in light of the Service's issuance of the 12-month Finding. NOW THEREFORE, IT IS HEREBY STIPULATED, and agreed to by and between Plaintiffs and Ken Salazar, Secretary of the U.S. Department of the Interior, and the Service ("Defendants") that publication of the 12-month finding renders Plaintiffs' claims for injunctive and declaratory relief in this action moot. The parties respectfully request an order from this Court dismissing such claims with prejudice.

Dated: April 19, 2010 Respectfully submitted,

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IGNACIA S. MORENO Assistant Attorney General JEAN E. WILLIAMS, Section Chief /s/ Daniel Pollak DANIEL J. POLLAK, Trial Attorney United States Department of Justice Environment & Natural Resources Division Wildlife and Marine Resources Section P.O. Box. 7369 Washington, D.C. 20044-7369 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for the Federal Defendants

/s/ Justin Augustine (as authorized on April 17, 2010) JUSTIN AUGUSTINE (CA Bar No. 235561) LISA T. BELENKY (CA Bar No. 203225) Center for Biological Diversity 351 California St., Ste. 600 San Francisco, CA 94104 Telephone: [phone] x 307 Facsimile: [phone] [e-mail] [e-mail]

IT IS SO ORDERED. Dated: April 20, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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