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Home Builders Association of Northern California v. United States Fish and Wildlife Service

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 8, 2009

HOME BUILDERS ASSOCIATION OF NORTHERN CALIFORNIA; BUILDING INDUSTRY LEGAL DEFENSE FOUNDATION; CALIFORNIA BUILDING INDUSTRY ASSOCIATION; CALIFORNIA STATE GRANGE; AND GREENHORN GRANGE, PLAINTIFFS,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; ROWAN GOULD, ACTING DIRECTOR OF THE UNITED STATES FISH AND WILDLIFE SERVICE; UNITED STATES DEPARTMENT OF INTERIOR; AND KEN SALAZAR, SECRETARY OF THE UNITED STATES DEPARTMENT OF INTERIOR,*FN1 DEFENDANTS, AND CALIFORNIA NATIVE PLANT SOCIETY; CENTER FOR BIOLOGICAL DIVERSITY; AND NATURAL RESOURCES DEFENSE COUNCIL, DEFENDANT-INTERVENORS

STIPULATION AND ORDER MODIFYING CONSENT DECREE

Plaintiffs, the Home Builders Association of Northern California; the Building Industry Legal Defense Foundation; the California Building Industry Association; the California State Grange; and the Greenhorn Grange; and Federal Defendants, the United States Fish and Wildlife Service; Rowan Gould, Acting Director of the United States Fish and Wildlife Service; the United States Department of the Interior; and Ken Salazar, Secretary of the United States Department of the Interior (collectively the "Service"), and Defendant-Intervenors California Native Plant Society; the Center for Biological Diversity; and the Natural Resources Defense Council (collectively, "the Parties"), by and through their undersigned counsel, state as follows:

WHEREAS, on March 14, 2006, the Parties filed a Settlement Agreement and Stipulation of Dismissal (Dkt. #60-1) ("Settlement Agreement") to resolve this litigation.

WHEREAS, by Order dated March 24, 2006 (Dkt. #61), the Court adopted the terms and conditions of the Settlement Agreement and dismissed this action with prejudice.

WHEREAS, paragraph 1.c of the Settlement Agreement, Designation of Critical Habitat for the La Graciosa thistle (Cirsium loncholepis), 69 Fed. Reg. 12,553 (March 17, 2004), provided that "[o]n or before July 27, 2007, the Service shall submit for publication in the Federal Register a proposed rule regarding any revisions to the designation. On or before July 27, 2008, the Service shall submit for publication in the Federal Register a final decision regarding any such proposed rule."

WHEREAS, by Stipulation and Order dated May 18, 2007 (Dkt. #65), paragraph 1.c of the Settlement Agreement was modified to provide that "[o]n or before July 27, 2008, the Service shall submit for publication in the Federal Register a proposed rule regarding any revisions to the designation. On or before July 27, 2009, the Service shall submit for publication in the Federal Register a final decision regarding any such proposed rule."

WHEREAS, the Service submitted its proposal to revise the designation of critical habitat for the La Graciosa thistle to the Federal Register on July 27, 2008, and the proposed rule was published on August 6, 2008, 73 Fed. Reg. 45,806 (Aug. 6, 2008).

WHEREAS, because of delays associated with the preparation of an Economic Analysis of the proposed revised critical habitat designation for the La Graciosa thistle, the Service requires an additional three months, to and including October 27, 2009, within which to submit a the final decision regarding the proposal for publication in the Federal Register.

NOW, THEREFORE, the parties hereby Stipulate and Agree as follows:

1. Paragraph 1.c. of the Settlement Agreement, as amended by the Court's Order dated May 18, 2007, is further amended to provide as follows:

Designation of Critical Habitat for the La Graciosa thistle (Cirsium loncholepis), 69 Fed. Reg. 12,553 (March 17, 1994). On or before July 27, 2008, the Service shall submit for publication in the Federal Register a proposed rule regarding any revisions to the designation. On or before October 27, 2009, the Service shall submit for publication in the Federal Register a final decision regarding any revisions to the designation.

2. Consistent with paragraph 2 of the Settlement Agreement, as approved and adopted by the Court on March 24, 2006, the current critical habitat designation for the La Graciosa thistle shall remain in full force and effect pending the completion of the reevaluation process described in the Settlement Agreement, as amended above.

It is so stipulated this day of 7th day of May, 2009.

JOHN C. CRUDEN Acting Assistant Attorney General

M. REED HOPPER JEAN E. WILLIAMS, Chief Pacific Legal Foundation LISA L. RUSSELL, Assistant Chief 3900 Lennane Drive Suite 200 Sacramento, CA 95834

KEVIN W. McARDLE, Trial Attorney Tele: (916) 419-7111 DC Bar # 454569 Fax: (916) 419-7747 United States Department of Justice Environment & Natural Resources Division Attorney for Plaintiffs Wildlife and Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Telephone: (202) 305-0219 Facsimile: (202) 305-0275 Attorneys for Federal Defendants

ANDREW WETZLER MATT KENNA (Pro Hac Vice) JAMES M. BIRKELUND Western Environmental Law Center Natural Resources Defense Council By: /s/ James M. Birkelund By: /s/ Matt Kenna (Pro Hac Vice)

JAMES M. BIRKELUND MATT KENNA Attorney for Intervenor Attorneys for Intervenors Natural Resources Defense Council California Native Plant Society and Center for Biological Diversity

Pursuant to Stipulation,

IT IS SO ORDERED.

CERTIFICATE OF SERVICE

I hereby certify that on May 7, 2009, I electronically filed a copy of the forgoing document using the CM/ECF system which, pursuant to L.R. 5-135(a), will automatically notify all counsel of record of the filing via email.

KEVIN W. McARDLE


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