Center For Biological Diversity et al v. Fish and Wildlife Services of the United States et al

Filing 115

ORDER DENYING 114 STIPULATED REQUEST FOR EXTENSION. Signed by Judge Alsup. (whalc2, COURT STAFF) (Filed on 12/3/2019)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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CENTER FOR BIOLOGICAL DIVERSITY,
et al.,

No. C 16-06040 WHA

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Plaintiffs,
ORDER DENYING STIPULATED
REQUEST FOR EXTENSION

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v.
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U.S. FISH & WILDLIFE SERVICE, et al.,
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Defendants.
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In this action for declaratory and injunctive relief under the Endangered Species Act
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regarding the status of the Pacific fisher, an order dated May 17, 2019 gave the United States
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Fish & Wildlife Service (“the Service”) until October 26, 2019, to submit a revised proposed
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listing for publication in the Federal Register and until April 25, 2020, to submit a final listing
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determination (Dkt. No. 105). The parties have stipulated to and request a 30-day extension of
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the deadline to publish the final listing determination (Dkt. No. 114). The cause given is that a
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member of the public has requested an extension of the notice-and-comment period by 90 days.
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The deadlines have already been extended twice (Dkt. Nos. 105, 91).
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Rule 60(b)(5) provides grounds for relief from a final judgment where “applying it
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prospectively is no longer equitable.” Our court of appeals has adopted the “more flexible
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standard of evaluating motions that seek to invoke the equity provision of Rule 60(b)(5)”
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announced in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992). Bellevue Manor
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Assocs. v. United States, 165 F.3d 1249, 1256 (9th Cir. 1999). “[A] party seeking modification
of a [final judgment] bears the burden of establishing that a significant change in circumstances

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warrants revision of the [judgment].” Rufo, 502 U.S. at 383. “If the moving party meets this

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standard, the court should consider whether the proposed modification is suitably tailored to the

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changed circumstance.” Ibid.

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Meaningful notice-and-comment is fundamental to an agency’s careful rulemaking. But

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this final rule has been long delayed and twice extended. Under the May 17 order, the public

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will already enjoy a 45 day notice-and-comment period (Dkt. No. 105) — this is sufficient for a

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diligent member of the public to comment on the proposed rule. The extension is DENIED.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: December 3, 2019.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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