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Center For Biological Diversity v. Kemthorne

January 7, 2009

CENTER FOR BIOLOGICAL DIVERSITY, PLAINTIFF,
v.
DIRK KEMTHORNE ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

SCHEDULING ORDER

(Fed. R. Civ. P. 16)

Administrative Record due 4/1/09 Motion To Supplement Administrative Record 4/22/09 Opposition To Motion to Supplement Administrative Record 5/6/09 Reply for Motion to Supplement Administrative Record 5/13/09 Status Conference May 26, 2009 Time 9:30 am Location: Courtroom 10

I. Date of Scheduling Conference

January 6, 2009

II. Appearances of Counsel

Justin Augustine appeared telephonically on behalf of Center for Biological Diversity. ("Plaintiff").

Clifford Stevens appeared telephonically on behalf of Defendant Dirk Kempthorne and U.S. Fish and Wildlife Service ("Defendants).

III. The Pleadings

A. Plaintiff's Contentions

The Center for Biological Diversity ("the Center") is seeking declaratory and injunctive relief in connection with Defendants' alleged violations of the Endangered Species Act, 16 U.S.C. §§ 1531-1544 ("ESA"). Plaintiff alleges that the Secretary of the Interior ("Secretary") and the United States Fish and Wildlife Service ("Service") (collectively "Defendants") have violated the ESA by failing to designate adequate critical habitat for the endangered Buena Vista Lake shrew, in order to ensure the conservation and recovery of the species. 16 U.S.C. § 1533(a)(3). Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Buena Vista Lake Shrew, 69 Fed. Reg. 51417 (August 19, 2004); Endangered and Threatened Wildlife and Plants; Final Rule to Designate Critical Habitat for the Buena Vista Lake Shrew (Sorex ornatus relictus), 70 Fed. Reg. 3439 (January 24, 2005). Plaintiff alleges that Defendants' failure to issue a legally sufficient critical habitat designation for the Buena Vista Lake shrew violates Section 3 and Section 4 of the ESA. 16 U.S.C. §§ 1532(5)(A) and 1533(a)(3)(A). Plaintiff specifically alleges that Defendants' violations include, but are not limited to: failing to designate sufficient critical habitat to conserve the species; improperly relying on an invalid regulation; failing to quantify and analyze the economic and other benefits of designating critical habitat for the Buena Vista Lake shrew; improperly attributing costs associated with listing the species and other costs to the designation of critical habitat; improperly including speculative costs; and failing to consider the likelihood of the extinction of the Buena Vista Lake shrew. 16 U.S.C. § 1533(b)(2).

Defendants Contentions

In their Answer, which will be filed on January 7, 2008, Defendants expect to maintain in this case that the Service's critical habitat designation was reasonable and complies with the ESA and the Administrative Procedures Act ("APA"), 5 U.S.C. §551 et seq.

The parties do not anticipate amendments to the pleadings at this time. Any amendments to the pleadings shall be filed ...


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