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Center for Biological Diversity v. U.S. Fish and Wildlife Service

February 1, 2010

CENTER FOR BIOLOGICAL DIVERSITY, PLAINTIFF,
v.
U.S. FISH AND WILDLIFE SERVICE, AND KEN SALAZAR, IN HIS CAPACITY AS SECRETARY OF THE INTERIOR, FEDERAL DEFENDANTS.



The opinion of the court was delivered by: Phyllis J. Hamilton United States District Judge

STIPULATED SETTLEMENT AGREEMENT AND ORDER OF DISMISSAL

The Parties, the Center for Biological Diversity ("Plaintiff"), and Ken Salazar, Secretary of the United States Department of the Interior and the United States Fish and Wildlife Service (collectively "Federal Defendants") have agreed to settle the above-captioned case in its entirety on the terms memorialized in this Stipulated Settlement Agreement ("Stipulation"):

WHEREAS on February 8, 1999, the U.S. Fish and Wildlife Service ("FWS") found that the Sacramento splittail (Pogonichthys macrolepidotus) ("Splittail") warranted listing as a threatened species under the Endangered Species Act ("ESA"), see Determination of Threatened Status for the Sacramento splittail, 64 Fed. Reg. 5963, 1999 WL 52401 (Feb. 8, 1999) ("Listing Decision");

WHEREAS FWS's Listing Decision was subsequently challenged in the U.S. District Court for the Eastern District of California in the case San Luis & Delta-Mendota Water Authority v. Badgley, No. 99-cv-05658-OWW-LJO;

WHEREAS on June 28, 2000, the U.S. District Court for the Eastern District Court of California in San Luis & Delta-Mendota Water Authority v. Badgley, No. 99-cv-05658-OWWLJO, found FWS's Listing Decision to be unlawful, see San Luis & Delta-Mendota Water Authority v. Badgley, 136 F. Supp. 2d 1136 (June 28, 2000);

WHEREAS on September 22, 2000, the U.S. District Court for the Eastern District Court of California remanded the Listing Decision to FWS for a re-evaluation of its Listing Decision, San Luis & Delta-Mendota Water Authority v. Badgley, No. 99-cv-05658-OWW-LJO (Dock. Entry No. 108) ("Remand Order");

WHEREAS after completing the review mandated by the Remand Order, the FWS removed the Splittail from the list of threatened species on September 22, 2003, see Notice of Remanded Determination of Status for the Sacramento splittail (Pogonichthys macrolepidotus), 68 Fed. Reg. 55,140, 2003 WL 22169145 (Sept. 22, 2003) ("2003 Final Rule");

WHEREAS on August 13, 2009, Plaintiff filed a complaint in this Court alleging that the 2003 Final Rule violated the ESA and the Administrative Procedure Act ("APA"), see Complaint, Case No. 09-cv-3711-PJH (Dock. Entry No. 1);

WHEREAS the Plaintiff and Federal Defendants, through their authorized representatives, without any admission of legal fault or error, and without final adjudication of the issues of fact or law with respect to Plaintiff's claims, have reached a settlement resolving this action;

WHEREAS the Parties agree that settlement of this action in this manner is in the public interest and is an appropriate way to resolve this dispute;

THE PARTIES THEREFORE STIPULATE AS FOLLOWS:

1. The 2003 Final Rule is remanded back to Federal Defendants for further proceedings consistent with the ESA and the APA. As detailed in paragraphs 2 and 3, on or before September 30, 2010, Federal Defendants will submit to the Federal Register for publication a new finding as to whether listing the Splittail is warranted or not warranted. As part of this review, the Federal Defendants will open a 30-day public comment period to allow for the submission of additional information by the public.

2. If, on remand, the Federal Defendants find that the Splittail does not warrant listing ("Not Warranted Finding"), the Federal Defendants shall submit the Not Warranted Finding to the Federal Register for publication on or before September 30, 2010.

3. If, on remand, the Federal Defendants find that the Splittail is warranted ("Warranted Finding"), Federal Defendants shall submit the Warranted Finding and a proposed rule to list the Splittail to the Federal ...


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