UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 3, 2011
SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, ET AL., PLAINTIFFS,
JIM BARTEL, ET AL., DEFENDANTS, AND BUILDING INDUSTRY LEGAL DEFENSE FOUNDATION, ET AL., INTERVENING DEFENDANTS, AND RELATED COUNTERCLAIM.
The opinion of the court was delivered by: Hon. Rudi M. Brewster United States Senior District Judge
ORDER SETTING HEARING TO SPREAD MANDATE
The Ninth Circuit Court of Appeals filed a memorandum decision on January 18, 2011 that instructed this Court to vacate the injunction as moot. The Court will spread the mandate at a hearing on April 4, 2011 at 11:30 a.m. in Courtroom 2. In anticipation of that hearing and to expedite the final resolution of these lengthy proceedings, the Court sets forth below its proposed amended judgment and order for the parties to consider.
The Court's injunction (issued in this case on October 13, 2006 and amended on December 15, 2006) stated in relevant part:
The Court immediately enjoins the City of San Diego's Incidental Take Permit (No. PRT-830421, dated July 18, 1997, and issued by the United States Fish and Wildlife Service) for those pending and future development projects that "take" any of the seven vernal pool species -- San Diego fairy shrimp (Branchinecta sandiegonensis); Riverside fairy shrimp (Streptocephalus woottoni), Otay mesa mint (Pogogyne nudiuscula); California Orcutt grass (Orcuttia californica); San Diego button celery (Eryngium aristulatum var. parishii); San Diego mesa mint (Pogogyne abramsii); and spreading navarretia (Navarretia fossalis) -- as defined and governed by the Endangered Species Act. 16 U.S.C. §§ 1531-44. Specifically, the Court enjoins (1) any and all pending applications for development of land containing vernal pool habitat;
(2) those projects where the City has granted permission, but the development has not yet physically begun to destroy vernal pool habitat; and (3) any further development where the permittee is presently engaged in the destruction of vernal pool habitat. The Court orders Defendant City of San Diego to serve a copy of this Order forthwith on all applicants and permittees affected by the injunction as noted above. The Court will not stay this immediate injunction. Southwest Ctr. for Biological Diversity v. Bartel, 470 F. Supp. 2d 1118, 1161-62 (S.D. Cal. 2006), dismissing and remanding, 2011 WL 148785.
The Ninth Circuit dismissed the appeal as moot because the City of San Diego relinquished the portions of its ITP covering the vernal pool species, and the FWS cancelled those portions of the permit.
Tentative Amended Judgment and Order
To comply with the Ninth Circuit's instructions, the Court notifies the parties that it intends to issue an "Amended Judgment and Order Following Remand by the Ninth Circuit."
Pursuant to the memorandum decision of the Ninth Circuit Court of Appeals in the above-captioned matter (filed Jan. 18, 2011), the Court vacates the Injunction issued in this case (filed on Oct. 13, 2006 and amended on Dec.15, 2006). The Injunction is moot as to the City of San Diego's Incidental Take Permit ("ITP") (No. PRT-830421, dated July 18, 1997, and issued by the United States Fish and Wildlife Service ("FWS")) pursuant to Section 10 of the Endangered Species Act, 16 U.S.C. § 1539, as to the seven vernal pool species involved in this litigation. Those seven vernal species are (1) San Diego fairy shrimp (Branchinecta sandiegonensis); (2) Riverside fairy shrimp (Streptocephalus woottoni), (3) Otay mesa mint (Pogogyne nudiuscula); (4) California Orcutt grass (Orcuttia californica); (5) San Diego button celery (Eryngium aristulatum var. parishii); (6) San Diego mesa mint (Pogogyne abramsii); and (7) spreading navarretia (Navarretia fossalis)). On March 8, 2010, the City of San Diego relinquished the portions of the ITP covering those seven vernal pool species. On May 14, 2010, the FWS cancelled the portions of the ITP as it applied to the seven vernal species. Therefore, that permit cannot be used or relied upon in any way with respect to those endangered and threatened species.
The Court orders the City of San Diego to serve a copy of this Amended Judgment and Order forthwith on all persons affected by the Ninth Circuit's decision (including those whom the received the City's original notice in December 2006.) See Doc. No. 276 (Ex. A).
The Clerk shall close this civil action.
Briefing Schedule and Appearances
Any party who objects to the proposed language or who offers alternative language may file a response on or before March 14, 2011. If responses are filed, any party may file a reply brief on or before March 21, 2011 and counsel shall appear at the April 4, 2011 hearing for further discussion. (Parties who wish to appear by telephone shall contact Chambers on or before March 29, 2011 to make the necessary arrangements.)
If no objections are filed, then the parties need not appear at the April 4, 2011 hearing to spread the mandate; instead, the Court will file the Ninth Circuit's decision and file an order with the language set forth above.
The Court will spread the mandate from the United States Court of Appeals for the Ninth Circuit on Monday, April 4, 2011 at 11:30 a.m. in Courtroom 2. Parties who wish to appear by telephone shall contact Chambers on or before March 29, 2011.
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