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Southwest Ctr. for Biological Diversity v. Rogers

ELR Citation: 27 ELR 20819
Nos. CV 96-018 TUC JMR, 950 F. Supp. 278/(D. Ariz., 12/18/1996)

The court holds that a challenge to the adequacy of a critical habitat designation that the Tenth Circuit had enjoined until the U.S. Fish and Wildlife Service (FWS) complies with the National Environmental Policy Act (NEPA) is not justiciable. The court notes that it is obligated to follow the Ninth Circuit's law that NEPA compliance is not required before critical habitat may be designated. However, a dilemma will arise should a federal court in the Ninth Circuit persist in deciding whether the designation is adequate to provide recovery for the two threatened species at issue. For example, should the court enforce the designation or require that additional territories be added to the critical habitat, the FWS will be required to disobey the Tenth Circuit's preliminary injunction in order to comply with this court's order. Moreover, the request for review implicates ripeness issues because there is presently no final critical habitat designation. And depending on the outcome of the NEPA process, plaintiffs' request for designation of habitat sufficient for the recovery of the species may become moot. Additionally, to the extent plaintiffs invite the court to give direction to the FWS to assist it in fashioning a new designation after compliance with NEPA, such a ruling would have only an advisory effect. Finally, principles of comity between the Ninth Circuit and Tenth Circuit must be recognized.

Counsel for Plaintiffs
Diane M. Connolly, Matthew G. Kenna
Kenna & Associates
1300 Meadow Rd., Durango CO 81301
(970) 385-6941

Counsel for Defendants
Eugene Bracamonte, Ass't U.S. Attorney
U.S. Attorney's Office
Acapulco Bldg.
110 S. Church Ave., Ste. 8310, Tucson AZ 85701
(602) 670-6511