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Center for Biological Diversity v. Norton

ELR Citation: 32 ELR 20040
Nos. 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 attorney 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 DOI's final action. 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. 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 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
Matt Kenna
Kenna & Hickcox
1300 Meadow Rd., Durango CO 81301
(970) 385-6941

Counsel for Defendant
Ronald Spritzer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Murphy, J. Before Kelly and McKay, JJ.