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Center For Biological Diversity the Bay Institute v. Ken Salazar

February 1, 2011

CENTER FOR BIOLOGICAL DIVERSITY THE BAY INSTITUTE
PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY OF DEPARTMENT OF INTERIOR, AND U.S. FISH AND WILDLIFE SERVICE; DEFENDANTS.



STIPULATED SETTLEMENT AGREEMENT

and Wildlife Service ("the Service") and Ken Salazar, Secretary of the United States Department of the Interior (collectively "Defendants").

This Stipulated Settlement Agreement is entered into by Plaintiffs, Center for Biological Diversity and The Bay Institute (collectively "Plaintiffs") and Defendants, the United States Fish WHEREAS, on August 8, 2007, the Service received a petition from Plaintiffs to list the San Francisco Bay-Delta ("SFBD") population of longfin smelt (Spirinchus thaleichtys) under the Endangered Species Act ("ESA") as a threatened or endangered distinct population segment ("DPS") and designate critical habitat for the species;

pursuant to 16 U.S.C. § 1533(b)(3)(A) concluding that the petition provided substantial information indicating that listing the SFBD population of longfin smelt as a DPS may be warranted, and initiated a status review. See 73 Fed. Reg. 24911;

WHEREAS, on May 6, 2008, the Service published an initial positive 90-day finding WHEREAS, on April 9, 2009, the Service published a finding pursuant to 16 U.S.C. § 1533(b)(3)(B) ("12-month finding") concluding that listing the SFBD population of longfin 18 smelt was not warranted because it did not meet the definition of a DPS and therefore did not 19 20 constitute a listable entity under the ESA. See 74 Fed. Reg. 16169;

WHEREAS, in the April 9, 2009 12-month finding, the Service stated that it was initiating a range wide status assessment of the longfin smelt" throughout its range in Alaska, Canada, Washington, Oregon, and California, and would also evaluate "whether the best available scientific information suggests that the San Francisco Bay-Delta population of the longfin smelt may be considered to occupy a significant portion of the range ("SPR"), and institute appropriate action." Id. at 16174; that the Service's April 9, 2009 12-month finding violated the ESA and was arbitrary and capricious in concluding that the SFBD population of longfin smelt did not meet the definition of a DPS, and in concluding that listing the SFBD population as threatened or endangered was not warranted;

WHEREAS, on November 13, 2009, Plaintiffs filed their Complaint in this case, allegingNOW, THEREFORE, IT IS STIPULATED BY AND BETWEEN THE PARTIES ASFOLLOWS:

This status review will be conducted consistent with all statutory requirements of Section 4 of 13 the ESA and appropriate Service policy.

1. The Service will complete a new 12-month finding on the longfin smelt by September30, 2011,*fn1 based on the rangewide status review of the longfin smelt that is currently underway.

2. In the event that the Service determines in the course of the status review referenced in Paragraph 1 that the longfin smelt rangewide does not warrant listing as threatened or endangered in all or a significant portion of its range, the Service will, in the same 12-month finding to be completed by September 30, 2011, consider whether any population of longfin 19 smelt qualifies as a DPS. In considering whether any population of longfin smelt qualifies as a DPS, the Service will reconsider whether the SFBD population of the longfin smelt constitutes a 21 distinct population segment.

3. If the Service concludes in the status review referenced in Paragraphs 1-2 that one or more populations of longfin smelt constitute a DPS, the 12-month finding will include a 5-factor analysis on the qualifying population(s) to determine whether listing is warranted.

submit a public notice of the initiation of the status review referenced in Paragraphs 1-3 for publication in the Federal Register to open an official public comment period. specified in paragraphs 1-4 and does not limit the Defendants' authority with regard to the

4. The Service will, within 60 days from the date of court approval of this Agreement,

5. This Agreement only requires the Defendants to take actions by the deadlines substantive outcome of any determinations. To challenge any final determination issued in accordance with this Agreement, Plaintiffs will be required to file a separate action. Plaintiffs do not waive their ability to challenge substantive decisions made by the Defendants pursuant to paragraphs 1-4, above, and Defendants do not waive any applicable defenses.

6. The Order entering this Agreement may be modified by the Court upon good cause shown, consistent with the Federal Rules of Civil Procedure, by written stipulation between the 14 parties filed with and approved by the Court, or upon written motion filed by one of the parties 15 and granted by the Court. In the event that either party seeks to modify the terms of this dispute arising out of or relating to this Agreement, or in the event that either party believes that the other party has failed to comply with any term or condition of this Agreement, the party seeking the modification, raising the dispute, or seeking enforcement shall provide the other party with notice of the claim. The parties agree that they will meet and confer (in-person not required) at the earliest possible time in a good-faith effort to resolve the claim before pursuing Agreement, including the ...


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