Motion and Memo 

Filed In US District Court

July 8, 2004 

On Sucker Delisting Petition

James L. Buchal

MURPHY & BUCHAL LLP

2000 S.W. First Avenue , Suite 320

Portland , OR   97201

Tel:     503-227-1011

Fax:    503-227-1034

E-mail:  jbuchal@mbllp.com

OSB #92161

Counsel for Plaintiffs  

UNITED STATES DISTRICT COURT  

DISTRICT OF OREGON  

The undersigned counsel hereby certifies that he has made a good faith effort through telephone conferences with counsel for defendants to resolve the dispute presented by this motion.

Pursuant to Rule 60 of the Federal Rule of Civil Procedure, the Administrative Procedure Act, and the Court’s inherent equitable authority, plaintiffs hereby move the Court for clarification of its September 3, 2003 Opinion and Order.  Specifically, plaintiffs ask the Court to clarify that the remand for further proceedings was not intended indefinitely to set aside the statutory deadlines for consideration of plaintiffs’ delisting petition, and that compliance with the remand order should be forthcoming within ten days.  This motion is supported by the accompanying memorandum.

Dated:  July 8, 2004 .

                                                            MURPHY & BUCHAL LLP  

                                                             _________________________           

                                                            James L. Buchal, OSB #92161

Tel:  503-227-1011  

Attorney for Plaintiffs

_______________________________________________________________

James L. Buchal

MURPHY & BUCHAL LLP

2000 S.W. First Avenue , Suite 320

Portland , OR   97201

Tel:     503-227-1011

Fax:    503-227-1034

E-mail:  jbuchal@mbllp.com

OSB #92161

Counsel for Plaintiffs

UNITED STATES DISTRICT COURT  

DISTRICT OF OREGON  

Argument

On October 19, 2001 , plaintiffs and others transmitted to defendants a petition to remove two species of Klamath Basin sucker fish from protection under the Endangered Species Act, presenting evidence that the fish were numerous and at no appreciable risk of extinction.  Pursuant to 16 U.S.C. § 1533(b)(3)(A), the Act required defendants, “to the maximum extent practicable”, to make a preliminary ruling on the petition within 90 days.  After no ruling came, plaintiffs filed suit on March 12, 2002 , and moved for summary judgment compelling the ninety-day determination on May 6, 2002 .

Shortly thereafter, on May 14, 2002 , defendants mooted the summary judgment motion by issuing a finding that the petition did not present substantial information that would indicate that delisting of the sucker may be warranted.  67 Fed. Reg. 34,433.  Plaintiffs then amended their complaint to charge that the finding was arbitrary, capricious, and contrary to law, filing their amended complaint on June 11, 2002 .

Eventually, on September 3, 2003 , this Court granted (in part) plaintiffs’ motion for summary judgment and remanded the 90-day determination “for further proceedings in accordance with this opinion”.  ( 9/3/03 Opinion & Order at 22.)  Specifically, this Court instructed the U.S. Fish & Wildlife Service “to either reissue the Initial Finding with more explanation on two matters or proceed to a status review”.  ( Id. at 3.)  Thereafter, defendants appealed, but then withdrew the appeal, which was dismissed by the Court of Appeals on December 31, 2003 .  (Order, No. 03-35925 (9^th Cir.).)

Since that time, more than twice the ninety-day statutory period provided by 16 U.S.C. § 1533(b)(3)(A), the U.S. Fish and Wildlife Service has made no further findings concerning the delisting petition, nor has it commenced any status review.  Counsel for defendants has repeatedly advised plaintiffs that action is imminent, and even that a draft decision was transmitted to Washington , D.C. some time ago, but plaintiffs have lost faith in such assurances.  Plaintiffs have come to believe that absent further guidance from the Court, defendants will continue to shirk their statutory responsibilities and duties under the remand order¾just as defendants failed and refused to carry out their duties when the delisting petition was initially filed.

Accordingly, plaintiffs ask this Court to clarify its initial ruling to establish a time limit for further consideration by the U.S. Fish and Wildlife Service.  In light of the extensive delays already experienced, plaintiffs ask that the Court amend its order to require that the Service disgorge its decision within ten business days.  Plaintiffs recognize that this motion presents an unusual application of Rule 60, particularly insofar as they only seek relief from the judgment in the sense of getting relief from its indeterminacy, but this motion seems more sensible that moving to hold the Service in contempt, or commencing a new action for agency action wrongfully withheld.

Conclusion

For the foregoing reasons, this Court should amend its September 3, 2003 order to require the Service to make a determination in response to the remand within ten days.

Dated:  July 8, 2004 .

                                                            MURPHY & BUCHAL LLP  

                                                            ____________________________

                                                            James L. Buchal, OSB #92161

Tel:  503-227-1011  

Attorney for Plaintiffs

(Permission to post from J. L. Buchal - July 8, 2004)