Center for Native Ecosystems et al v. Salazar et al

Filing 79

MEMORANDUM OPINION AND ORDER granting 69 Respondents' Motion to Remand and for Vacatur. See the order for detail. Status report due 7/1/13. Upon completion of the remand ordered by this Court, final judgment shall be entered in accordance with Fed. R. Civ. P. 58, by Judge John L. Kane on 7/7/11.(gmssl, ) Modified on 7/7/2011 to add the due date for the status report (gmssl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 09-cv-01463-AP
CENTER FOR NATIVE ECOSYSTEMS,
BIODIVERSITY CONSERVATION ALLIANCE,
CENTER FOR BIOLOGICAL DIVERSITY,
DEFENDERS OF WILDLIFE, and
NATURAL RESOURCES DEFENSE COUNCIL,
Petitioners,
v.
KEN SALAZAR, Secretary of the Interior, and
ROWAN GOULD, Director, U.S. Fish & Wildlife Service,
Respondents,
and
STATE OF WYOMING,
WYOMING FARM BUREAU FEDERATION, and
WYOMING STOCK GROWERS ASSOCIATION,
Intervenors.

MEMORANDUM OPINION AND ORDER
Kane, J.
This matter is currently before me on Respondents’ Motion to Remand and for Vacatur
(doc. 69). At issue is the future of the U.S. Fish and Wildlife Service’s 2008 decision to delist the
Preble’s Meadow Jumping Mouse (Zapus hudsonius preblei) in the Wyoming portion of its range.
For the reasons stated below, Respondents’ motion is GRANTED.

1

BACKGROUND1
The Preble’s Meadow Jumping Mouse (Zapus hudsonius prelbei) was first listed as
“threatened” by the U.S. Fish and Wildlife Service in 1998. Final Rule to List the Preble’s
Meadow Jumping Mouse as a Threatened Species, 63 Fed. Reg. 26,517, 26,526 (May 13, 1998)
(codified at 50 C.F.R. pt. 17). After a series of petitions challenging the listing decision, the FWS
found there to be substantial information that potentially warranted delisting of the Preble’s and it
conducted a status review pursuant to 16 U.S.C. § 1533(b)(3)(B). See 12-Month Finding on a
Petition to Delist the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei) and Proposed
Delisting of the Preble's Meadow Jumping Mouse, 70 Fed. Reg. 5,404 (Feb. 2, 2005). After the
FWS failed to timely publish a final delisting determination, the State of Wyoming filed suit to
compel action in accordance with the Endangered Species Act.
Soon after the parties reached a settlement agreement in that matter, the Solicitor of the
United States Department of the Interior issued a now dubious legal opinion setting forth a novel
interpretation of the meaning of the statutory phrase “in danger of extinction throughout all or a
significant portion of [a species’] range” which is contained in the definitions of both
“endangered species” and “threatened species” in the ESA. Memorandum re: The Meaning of
“In Danger of Extinction Throughout All or a Significant Portion of its Range” (Mar. 16, 2007)
(doc. 34-2). The opinion defined “range” as the range in which a species currently exists, not the
historic range of the species. Contrary to DOI’s longstanding policy, the opinion also permitted

1

I thoroughly discussed the factual and procedural background of this case in an earlier
decision relating to the scope of the Administrative Record. See Ctr. for Native Ecosystems v.
Salazar, 711 F. Supp. 2d 1267 (D. Colo. 2010). I repeat the portions of that discussion most
relevant to Respondents’ Motion for Voluntary Remand and Vacatur.
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the Secretary to list and delist a species, sub-species, or distinct population segment in less than
its presently occupied range.
Relying entirely on the statutory interpretation contained in the Solicitor’s opinion, the
FWS published and sought comment on a revised proposed rule to amend the listing of the
Preble’s in November 2007. Revised Proposed Rule to Amend the Listing for the Preble’s
Meadow Jumping Mouse (Zapus hudsonius preblei) to Specify Over What Portion of Its Range
the Subspecies is Threatened, 72 Fed. Reg. 62,992 (Nov. 7, 2007) (“[W]e seek information, data,
and comments concerning . . . [o]ur analysis and conclusions regarding [significant portion of its
range] in light of the March 14, 2007, Department of the Interior, Solicitor Memorandum . . . .”).
In the proposed rule, the FWS determined that the Preble’s was “a subspecies not threatened
throughout all of its range,” and proposed maintaining the Preble’s “threatened” status in
Colorado but delisting it in Wyoming. Id.
On July 10, 2008, the FWS published its Final Rule amending the listing determination for
the Preble’s to remove legal protections for the mouse in Wyoming. Final Rule To Amend the
Listing for the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei) To Specify Over
What Portion of Its Range the Subspecies Is Threatened, 73 Fed. Reg. 39,790 (July 10, 2008)
(“2008 Amended Listing Decision”). After filing a 60-day notice of intent to sue for violations of
the ESA on September 4, 2008, Petitioners filed the instant suit challenging the FWS’s (1)
delisting of the Preble’s in Wyoming and (2) listing of the Preble’s as threatened instead of
endangered in Colorado. Petitioners also challenged (3) the DOI’s interpretation of the ESA
phrase “significant portion of its range,” asserting that this interpretation is contrary to the
statutory purpose of the ESA and that in its formulation and adoption of this policy DOI failed to

3

comply with the procedural requirements of the ESA.
During the pendency of this litigation, the U.S. District Court for the District of Montana
issued an opinion that, in pertinent part, rejected the Solicitor’s interpretation of the ESA, finding
it contrary to the plain language of the statute. See Defenders of Wildlife v. Salazar, 729 F. Supp.
2d 1207 (D. Mont. 2010). According to Judge Molloy, the ESA only permits the FWS to list a
species, a subspecies, or a distinct population segment–not some lesser portion thereof. Id. at
1211. In a separate opinion, the U.S. District Court for the District of Arizona rejected the
statutory interpretation contained in the Solicitor’s memorandum opinion on similar grounds. See
WildEarth Guardians v. Salazar, No. 09-00574-PHX-FJM (D. Ariz. Sept. 30, 2010).
After reviewing these opinions, the Solicitor of the Department of the Interior withdrew
the challenged statutory interpretation, and the FWS announced its intent to propose for notice
and comment a joint policy with the National Marine Fisheries Service regarding the
interpretation and implementation of the statutory phrase, “in danger of extinction throughout all
or a significant portion of its range.” In light of these developments and because the FWS’s
decision to delist the Preble’s in the Wyoming portion of its range was based entirely on this now
withdrawn statutory interpretation, Respondents have filed the instant motion seeking remand and
vacatur of the 2008 Amended Listing Decision so that the FWS may voluntarily reconsider its
decision.
ANALYSIS
Although Petitioners acquiesce to Respondents’ request for remand and vacatur,
Intervenors the State of Wyoming, the Wyoming Farm Bureau Federation, and the Wyoming
Stock Growers Association oppose Respondents’ motion as premature and inconsistent with the

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procedural mandates of the Administrative Procedures Act. I will consider their arguments
relating to Respondents’ Motion to Remand and for Vacatur in turn.
Remand
As the Tenth Circuit has noted, “Administrative agencies have an inherent authority to
reconsider their own decisions, since the power to decide in the first instance carries with it the
power to reconsider.”2 Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir. 1980).
Accordingly, upon an admission of error by an agency whose decision has been challenged,
courts commonly remand the challenged decision to the agency without considering the
underlying merits of the challenge. See Carpenters Indus. Council v. Salazar, 734 F. Supp. 2d
126, 132 (D.D.C. 2010). This is especially true when the agency’s change in position results
from either (1) new evidence which undermines the stated basis for the challenged action or (2)
intervening events outside of the agency’s control that have the potential to affect the validity of
the agency’s challenged action. Id. (citing Ethyl Corp. v. Browner, 989 F.2d 522, 523 (D.C. Cir.
1993) and SKF USA Inc. v. United States, 254 F.3d 1022, 1028 (Fed. Cir. 2001)). Even in the

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The Wyoming Farm Bureau Federation and the Wyoming Stock Growers Association
argue that these inherent powers are limited to situations in which an agency is acting in an
adjudicative, as opposed to a legislative, role. Yet the cases Intervenors cite in support of this
argument, while rejecting an agency’s attempt to reconsider a legislative action, are not based on
the distinction between an agency’s exercise of adjudicative and legislative powers. Rather, the
cases are most properly cited in support of the proposition that an agency may not attempt to
modify a final rule without following the notice and comment procedures required by the
Administrative Procedures Act. See Nat. Res. Def. Council v. Abraham, 355 F.3d 179 (2d Cir.
2004); Utility Solid Waste Activities Grp. v. U.S. Envt’l Prot. Ag’y, 236 F.3d 749 (D.C. Cir.
2001). The FWS makes no such attempt here. On the contrary, it seeks remand so it may
reconsider its listing decision in accordance with the procedural requirements of the APA. Thus,
even though the instant case involves the FWS’s exercise of its legislative authority, remand is
not inappropriate. See Utility Solid Waste Activities Grp., 236 F.3d at 753 (an agency has the
power to correct its mistakes “so long as it follows certain procedures . . . spelled out in APA §
553(b) for usual notice and comment rulemaking”).
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absence of such circumstances, courts have considerable discretion in determining whether
remand is appropriate if the agency has raised a substantial and legitimate concern in support of
their request for a remand. See Carpenters Indus. Council, 734 F. Supp. 2d at 132 (citing Sierra
Club v. Antwerp, 560 F. Supp. 2d 21, 23 (D.D.C. 2008)).
Respondents argue that the two district court decisions rejecting the Solicitor’s
interpretation of “significant portion of its range” and the withdrawal of the Solicitor’s
memorandum opinion constitute new evidence warranting a remand. Both Intervenors argue to
the contrary that this is neither new evidence nor an intervening event that would support
Respondents’ request for a voluntary remand. Specifically, the State of Wyoming argues that
because the two district court opinions are not binding on this Court, they do not constitute new
evidence. Response to Federal Respondents’ Motion for Voluntary Remand and Vacatur (doc.
74), at 8 (citing Hart v. Massanari, 266 F.3d 1155, 1172-73 (9th Cir. 2001)).3
The irony of the State of Wyoming’s citation to a case from the Ninth Circuit in support of
the argument that the case law of other circuits does not bind this Court is not lost upon me. That
being said, the State of Wyoming is correct in its assertion. See United States v. Carson, 793 F.2d
1141, 1147 (10th Cir. 1986). This does not, however, mean that these decisions are without
3

The Wyoming Farm Bureau Federation and the Wyoming Stock Growers Association
take this argument one step further and assert that Respondents may not base their motion for
voluntary remand on a change of law based on district court opinions. Response to
Respondents’ Motion for Voluntary Remand and Vacatur (doc. 75) at 7 (citing Tribune Co. v.
F.C.C., 133 F.3d 61, 68 (D.C. Cir. 1998) (“We have suggested (in dicta) that where an agency is
confronted with an undisputable indication that its rule is illegal, either because of the reasoning
of a Supreme Court decision or intervening legislation, it may be entitled, indeed obliged, to
decline to apply it”)). I find no basis in the cited case, or elsewhere, for this argument. As an
initial matter, the quoted statement is dicta relying upon dicta – a dubious provenance for any
legal proposition. Furthermore, the quoted statement is merely permissive and in no way
restricts the universe of law upon which an agency may rely in determining that a statutory
interpretation is illegal.
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persuasive value. As Respondents properly note, “courts routinely consider decisions from other
circuits when analyzing motions for remand.” Reply in Support of Motion for Remand (doc. 78),
at 6. See, e.g., Natural Res. Def. Council v. U.S. Dept. of the Interior, 275 F. Supp. 2d 1136, 1142
(C.D. Cal. 2002) (relying on the persuasive value of the Tenth Circuit’s decision in N.M. Cattle
Growers Ass’n v. U.S. Fish & Wildlife Serv. as grounds for granting the FWS’s motion for
voluntary remand). I have reviewed the decisions rejecting the Solicitor’s interpretation of
“significant portion of its range,” and I find them very persuasive. Thus, they constitute sufficient
“new evidence” to justify Respondents’ Motion for Remand.4
Nevertheless, argues the State of Wyoming, remand in this instance is premature because
the FWS has not yet completed their policy defining “significant portion of its range.”
Accordingly, the State of Wyoming seeks a stay until the FWS has completed its new policy and
has explained why that new policy necessitates reconsideration of the 2008 Amended Listing
Decision.
As Respondents note, the State of Wyoming has not filed a motion for a stay and I may
not construe their request for a stay as a motion. See D.C.COLO.LCivR 7.1(C). Even were I to
consider this request as a motion for a stay, the State of Wyoming has failed to adduce sufficient
evidence that a stay is warranted.5 Accordingly, Respondents’ Motion for Remand is
4

Because I find these district court decisions justify Respondents’ Motion for Remand, I
do not address Intervenors’ arguments relating to whether the decision to withdraw the
Solicitor’s Memorandum Opinion constitutes “new evidence” or an “intervening circumstance”
for purposes of justifying the Respondents Motion for Voluntary Remand.
5

In order to obtain a stay, the State of Wyoming bears the burden of showing that (1) a
stay would not prejudice the Petitioners, Respondents, or other parties; (2) it would suffer
hardship and inequity if the action is not stayed; and (3) judicial resources would be saved. See
Landis v. N. Am. Co., 299 U.S. 248 (1936). It has failed to address either the first or third factors
and has failed to demonstrate that remand will result in any significant hardship.
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GRANTED. I now turn to Respondents request for vacatur of the 2008 Amended Listing
Decision.
Vacatur
Although an agency is ordinarily required to provide adequate public notice and comment
in order to repeal a rule, 5 U.S.C. § 553, a reviewing court is not similarly bound. In fact, under
the APA, reviewing courts are directed to summarily set-aside agency action found to be
“arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Fed.
Commc’ns Comm’n v. Nextwave Pers. Commc’ns, 537 U.S. 293, 300 (2003). Most relevant to
the instant motion, when a rule has been found to be legally invalid, the ordinary result is vacatur.
See Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998).
Intervenors do not question the appropriateness of vacatur when a rule has been found
legally invalid; instead, they challenge whether vacatur is appropriate when a reviewing court has
not made a decision on the merits of the challenged action. Seizing upon the APA’s requirement
that an agency action be set-aside when it is found unlawful, Intervenors argue that a reviewing
court may set-aside agency action only when it finds the agency’s action unlawful.6 See 5 U.S.C.
§ 706(2); see also Carpenters Indus. Council v. Salazar, 734 F. Supp. 2d 126, 136 (D.D.C. 2010);
Nat’l Parks Conserv. Ass’n v. Salazar, 660 F. Supp. 2d 3, 5 (D.D.C. 2009). This argument is

6

Intervenors and the cited cases also adopt the argument that allowing vacation of a rule
without a decision on the merits allows an agency to repeal a rule without providing the
opportunity for notice and comment required by the APA. This argument ignores the distinction
between judicial and agency action. As noted above, a court’s decision to vacate an agency’s
action is not subject to the APA, and an agency’s motion for vacatur is not a fait accompli. As I
detail below, the decision to vacate an agency’s decision without an express determination on the
merits is achieved through a careful balancing of a variety of equitable considerations. I am,
quite frankly, puzzled by the seemingly unquestioning acceptance that judicial vacatur is in any
way bound by the APA.
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unconvincing.
As an initial matter, Intervenors misapprehend the import of the APA’s judicial review
provision. The language of § 706(2) is mandatory, but not exclusive.7 It does not expressly limit
a reviewing court’s authority to set-aside an agency’s action;8 it merely requires a reviewing court
to do so in certain circumstances.9 The lack of an express jurisdictional limitation is significant,
because, as the Supreme Court has stated, absent an express congressional mandate to the
contrary, courts “retain traditional equitable discretion.” Weinberger v. Romero-Barcelo, 456 U.S.
305, 320 (1982) (“[A] major departure from the long tradition of equity practice should not be
lightly implied.” Statutes should be construed “in favor of that interpretation which affords a full
opportunity for equity courts to treat enforcement proceedings . . . in accordance with their
traditional practices, as conditioned by the necessities of the public interest which Congress has
sought to protect.”). Because there is no express jurisdictional limitation in the APA, I retain my
traditional equitable discretion.10 See Bob Marshall Alliance v. Lujan, 804 F. Supp. 1292, 1296

7

Although not relevant to the instant discussion, it is worth noting that there is some
debate whether the language of § 706(2) is even mandatory. See Ronald M. Levin, “Vacation”
at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291
(2003). I need not address this issue to resolve the instant dispute, and I decline to do so.
8

For a thorough examination of the text, history, and construction of § 706, see Levin,
supra note 7 at 309-15. Although the primary thrust of Professor Levin’s argument is aimed at
justifying the practice of remanding agency decision without vacatur, his reasoning and rationale
apply equally well to vacating an agency’s decision even without a decision on the merits.
9

Again, the mandatory nature of § 706(2) has been questioned by at least one
commentator. See Levin, supra note 7.
10

I do not suggest that a reviewing court may circumvent the clear limitations on judicial
review of an agency’s action via an exercise of its equitable jurisdiction. Where, as here,
however, an agency seeks to invoke a court’s equitable jurisdiction, equitable relief is consistent
with the deference owed an agency’s decision under the APA.
9

n.5 (D. Mont. 1992).
This point is not merely academic. As the Tenth Circuit has noted, “Vacatur is an
equitable remedy . . . and the decision whether to grant vacatur is entrusted to the district court’s
discretion.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1139 (10th
Cir. 2010). Thus, vacation of an agency action without an express determination on the merits is
well within the bounds of traditional equity jurisdiction. See Natural Res. Def. Council v. U.S.
Dep’t of Interior, 275 F. Supp. 2d 1136, 1143 (C.D. Cal. 2002); Coal. of Ariz./N.M. Cntys. for
Stable Econ. Growth v. Salazar, No. 07-cv-00876 (D.N.M. May 4, 2009) (Dkt. No. 51 at 5).
Completing the syllogism, because vacatur is an equitable remedy, and because the APA does not
expressly preclude the exercise of equitable jurisdiction, the APA does not preclude the granting
of vacatur without a decision on the merits.
In exercising my equitable discretion and determining whether it is appropriate to vacate
the FWS’s 2008 Amended Listing Decision, I consider “the seriousness of the deficiencies in the
completed rulemaking and the doubts the deficiencies raise about whether the agency chose
properly from the various alternatives open to it in light of statutory objectives,” weighed against
any harm that might arise from vacating the existing rule, including the potential disruptive
consequences of an interim change. United Mine Workers v. Dole, 870 F.2d 662, 673 (D.C. Cir.
1993); see also Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51
(D.C. Cir. 1993). I begin by considering the deficiencies in the FWS’s 2008 Amended Listing
Decision.
In light of the above-cited opinions, the FWS’s decision to withdraw the rule, and the
complete disavowment of the Solicitor’s legal opinion that formed the basis for the 2008

10

Amended Listing Decision, it is clear that the 2008 Amended Listing Decision suffered from
significant deficiencies. Despite Intervenors’ argument to the contrary, the best available science
that justified the FWS’s conclusion that the Preble’s was not threatened in the Wyoming portion
of its range does not alleviate this deficiency. The science underlying the 2008 Amended Listing
Decision focused solely on the Wyoming portion of the Preble’s range. Absent designation of
any distinct population segments,11 the FWS will be required to consider the best available
science concerning the Preble’s viability throughout its range in both Wyoming and Colorado.
See Final Rule to Amend the Listing for the Preble’s Meadow Jumping Mouse (Zapus hudsonius
preblei) To Specify Over What Portion of Its Range the Subspecies is Threatened, 73 Fed. Reg.
39790, 39802 (July 10, 2008) (noting that “the Wyoming portion of [the subspecies’] range is
necessary for resiliency, redundancy, and representation of the Prebles”). Thus, the best available
science contained in the 2008 Amended Listing Decision is of limited utility.
Intervenors also argue that any error in the promulgation of the 2008 Amended Listing
Decision was merely “legal.” Although the intent of this assertion is unclear, they appear to
suggest that this would weigh against the significance of the deficiency. Once again, however,
their argument misses the point. It matters not whether the deficiency was “legal” or “factual;” in
this context the key distinction is between “substantive” and “procedural” errors. See Bldg.
Indus. Legal Def. Found. v. Norton, 231 F. Supp. 2d 100, 105 (D.D.C. 2009). The now

11

The State of Wyoming argues that, even if the Solicitor’s interpretation was deficient,
vacatur is not necessary to cure any defects because it is likely to submit information to the FWS
justifying the designation of distinct population segments based on hydrologic unit boundaries.
This argument ignores that fact that this information has not been subject to the procedural
strictures of the ESA and the APA. Wyoming is free to participate in and, as necessary,
challenge the forthcoming rulemaking process. This does not, however, mean that vacatur is not
necessary.
11

withdrawn Solicitor’s opinion resulted in a significant substantive error, because it impermissibly
limited the FWS’s consideration of the threats to the Preble’s along political boundaries
completely lacking in biological significance. Based on the substantive nature of this error, there
is a greater likelihood that the FWS will revise the rule upon remand. See Natural Res. Def.
Council, 275 F. Supp. 2d at 1143. This side of the scale favors vacatur. I now turn my attention
to the potential disruptive consequences of reinstating the 1998 listing decision.
Intervenors cite numerous disruptions that will result from reversion to the 1998 listing
decision and the reinstatement of ESA protections for the Preble’s in the Wyoming portion of its
range. Specifically, they cite the delay and resultant cost ESA consultation will have on
numerous projects contained in the State’s transportation plan, energy development projects on
the State’s trust lands, and the State’s agricultural industry. These harms are, however, irrelevant.
As the Supreme Court has noted, “The plain intent of Congress in enacting [the ESA] was
to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v.
Hill, 437 U.S. 153, 184 (1978) (emphasis added). In enacting the ESA, Congress definitively
skewed the balancing process in favor of species protection, and I cannot ignore this clear
command. See, e.g., Humane Soc’y of U.S. v. Kempthorne, 579 F. Supp. 2d 7, 21 (D.D.C. 2008)
(citing “the ESA’s preference for protecting endangered species” as justification for retaining
protections for a species pending remand proceedings). Consistent with the ESA, vacatur of the
2008 Amended Listing Decision and reinstatement of the 1998 listing rule will provide the
Preble’s the most protection pending the FWS’s reconsideration of its 2008 Amended Listing
Decision and resolution of the petitions to delist the Preble’s filed by the State of Wyoming and
Coloradans for Water Conservation and Development.

12

Despite this seemingly draconian result, most of the disruptions cited by Intervenors can
be mitigated fairly quickly. For nearly ten years the Preble’s was afforded protection under the
ESA, and the State of Wyoming and the FWS developed streamlined procedures allowing for
meaningful consultation to be completed in a timely, efficient manner. Upon remand and vactur,
Respondents shall make every effort to consult with the State of Wyoming to amend the
Programmatic Consultation agreement relating to transportation projects to include conservation
measures for inclusion in various project types in order to avoid and minimize impacts to the
Preble’s and its habitat. Furthermore, the § 4(d) special rule exempting numerous activities from
the ESA’s general take prohibitions shall be reinstated. These special rules will alleviate many of
the State’s concerns relating to agricultural improvements.12
CONCLUSION
Based on the foregoing discussion, Respondents’ Motion for Remand and Vacatur is
GRANTED. IT IS ALSO ORDERED that:
1. The FWS’s 2008 Amended Listing Decision under the ESA concerning the Preble’s
meadow jumping mouse, 73 Fed. Reg. 39,790 (July 10, 2008), is remanded to the Service for
reconsideration. The 2008 Amended Listing Decision is also vacated, effective August 6, 2011.
2. The Service shall publish notice in the Federal Register of the Service’s action
vacating the 2008 Amended Listing Decision concerning the Preble’s.
3. The Service shall make clear in the same Federal Register notice that vacating the
2008 Amended Listing Decision has the effect of reinstating: (a) the 1998 listing rule for the

12

Although there were no procedures in place to streamline consultation for energy
development on the State’s trust lands, there is no reason to speculate that none can be
developed.
13

Preble's, 63 Fed. Reg. 26,517 (May 13, 1998); and (b) the Endangered Species Act section 4(d)
special rule regarding the Preble's published in the Federal Register in 2001, amended in 2002,
and extended indefinitely in 2004, 66 Fed. Reg. 28125 (May 22, 2001); 67 Fed. Reg. 61,531 (Oct.
1, 2002); 69 Fed. Reg. 29,101 (May 20, 2004).
4. The Service shall complete its review of the status of the Preble’s and publish a
12-month finding in the Federal Register on the two December 17, 2003 petitions submitted by
the State of Wyoming and Coloradans for Water Conservation and Development to delist the
Preble’s by the sooner of either twelve months after its formulation of a new interpretation of the
“significant portion of its range” language or June 1, 2013.
5. By July 1, 2013, the Federal Respondents shall file a status report setting forth their
compliance with this Order.
6. Upon completion of the remand ordered herein by this Court, final judgment shall be
entered in accordance with Fed. R. Civ. P. 58.

Dated: July 7, 2011

BY THE COURT:
s/John L. Kane
Senior U.S. District Judge

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