Center for Biological Diversity v. Norton
Citation: 32 ELR 20040
No. No. 00-2162, 262 F.3d 1077/(10th Cir., 08/21/2001)
The court affirms a district court decision rejecting an environmental group's claims for attorneys fees in connection with their lawsuit against the U.S. Department of the Interior (DOI) in which they sought the listing of the Arkansas River shiner as an endangered or threatened species under the Endangered Species Act. Viewing the evidence as a whole, the court cannot say that the district court committed clear error when it concluded that final agency action on the shiner was not causally linked to the environmental group's lawsuit. The environmental group argued that the chronology of events leading to final agency action on the shiner, standing alone, raised the presumption that its lawsuit was the catalyst for the DOI's final action. The DOI, however, supplemented the environmental group's chronology with evidence that work on listing the shiner began well before the group filed its lawsuit and that the listing timetable was not altered or accelerated in response to the group's lawsuit. The DOI's assertion that action was being taken on the shiner well before the environmental group filed its lawsuit was corroborated by the public notice published in the Federal Register, which reopened the public comment period and allowed additional comments to be submitted. Additionally, a memorandum written after the environmental group gave notice to the DOI of its intent to sue, but before the group commenced the lawsuit, suggested that the timetable on listing the shiner was not accelerated in response to the group's lawsuit.
Counsel for Plaintiff
Kenna & Hickcox
1300 Meadow Rd., Durango CO 81301
Counsel for Defendant
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
Murphy, J. Before Kelly and McKay, JJ.