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Building Indus. Ass'n of Superior Cal. v. Babbitt

Citation: 29 ELR 20328
161 F.3d 740/47 ERC 1701/(D.C. Cir., 11/24/1998)

The court holds that it lacks jurisdiction over a building association's appeal of a decision upholding the U.S. Fish and Wildlife Service's (FWS') listing of four species of fairy shrimp as endangered or threatened under the Endangered Species Act. The district court granted partial summary judgment upholding the FWS' listing decision, but remanded the FWS' decision to forego critical habitat designation. The district court later certified the listing claim for appellate review under Fed. R. Civ. P. 54(b) and entered an express determination that there is no just reason for delay and an express direction for the entry of judgment. The district court, however, failed to supply any reasoning as to whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals. It appears that the listing and critical habitat decisions arise from a nexus of fact and law so intertwined that if the court were to decide the listing issue now, it may nonetheless face many of the same questions in determining the critical habitat issue later. Furthermore, it is unclear whether the district court applied the proper considerations to ensure that its application of Fed. R. Civ. P. 54(b) preserves the historical federal policy against piecemeal appeals.

Counsel for Appellants
Lawrence R. Liebesman
Linowes & Blocher
1010 Wayne Ave., Ste. 1000, Silver Spring MD 20910
(301) 588-8580

Counsel for Appellees
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000