Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 1 of 22
APPEAL,LC1,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 6.1.2 (Pocatello − Eastern)
CIVIL DOCKET FOR CASE #: 4:06−cv−00277−BLW

Western Watersheds Project vs U.S. Fish and Wildlife Service Assigned to: Judge B. Lynn Winmill Case in other court: 9CCA, 07−35265
9CCA, 07−35267 9CCA, 08−35352 9CCA, 08−35353 9CCA, 08−35409 9CCA, 08−35414 Cause: 16:1538 Endangered Species Act Plaintiff

Date Filed: 07/14/2006 Date Terminated: 12/04/2007 Jury Demand: None Nature of Suit: 893 Environmental Matters Jurisdiction: U.S. Government Defendant

Western Watersheds Project

represented by Laurence J Lucas Advocates for the West Executive Director POB 1612 Boise, ID 83701 208−342−7024 Fax: 208−342−8286 Email: llucas@advocateswest.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd C Tucci ADVOCATES FOR THE WEST POB 1612 Boise, ID 83701 (208) 342−7024 Email: ttucci@advocateswest.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant US Fish and Wildlife Service

represented by Coby Howell US DEPT OF JUSTICE Environment & Natural Resources Division Wildlife & Marine Resourse Section c/o US Attorney's Office 1000 SW Third Ave Ste 600 Portland, OR 97204 503−727−1023 Fax: 503−727−1117 Email: coby.howell@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Pendleton Williams U.S. Department of Justice Ben Franklin Station POB 7369 Washington, DC 20044−7369 202−305−0206 Email: robert.p.williams@usdoj.gov LEAD ATTORNEY

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 2 of 22
ATTORNEY TO BE NOTICED
Deborah A Ferguson Ferguson Durham, PLLC 223 N. 6th Street Suite 325 Boise, ID 83702 208−345−5183 Fax: 208−906−8663 Email: daf@fergusondurham.com ATTORNEY TO BE NOTICED

V. Intervenor Defendant Anadarko Petroleum Corporation
Intervenor Defendant State of Wyoming

represented by Christopher H Meyer GIVENS PURSLEY PO Box 2720 Boise, ID 83701−2720 (208) 388−1200 Fax: (208) 388−1200 Email: chrismeyer@givenspursley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael B Wigmore BINGHAM MCCUTCHEN LLP 2020 K Street, N.W. Washington, DC 20006 (202) 373−6000 Fax: (202) 373−6001 Email: michael.wigmore@bingham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra P Franco BINGHAM MCCUTCHEN LLP 2020 K Street, N.W. Washington, DC 20006 (202) 373−6000 Fax: (202) 373−6001 Email: s.franco@bingham.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary G Allen GIVENS PURSLEY PO Box 2720 Boise, ID 83701−2720 (208) 388−1200 Fax: 1−208−388−1300 Email: GaryAllen@givenspursley.com ATTORNEY TO BE NOTICED
represented by David Fermin Hensley OFFICE OF THE GOVERNOR 304 N. 8th St Boise, ID 83720 (208) 334−2100 Fax: (208) 334−2189 Email: dhensley@gov.idaho.gov LEAD ATTORNEY

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 3 of 22

ATTORNEY TO BE NOTICED

Robert A Nicholas Wyoming Attorney General's Office 123 Capitol Building Cheyenne, WY 82002 307−777−6946 Email: jjerde@state.wy.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Gerry Myers , III HOLLAND & HART PO Box 2527 Boise, ID 83701 (208) 342−5000 Fax: (208) 343−8869 Email: wmyers@hollandhart.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Governor James E. Risch Governor James E. Risch

represented by David Fermin Hensley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas C. Perry Office of the Governor State Capitol Boise, ID 83720 (208) 334−2100 Fax: (208) 854−3036 Email: tom.perry@gov.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant Idaho Farm Bureau Federation

represented by James S Burling Pacific Legal Foundation 930 G Street Sacramento, CA 95814 916−419−7111 Email: jsb@pacificlegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jared Wayne Allen 2105 Coronado Idaho Falls, ID 83404 208−557−5206 Fax: 208−529−9732 Email: allen@beardstclair.com LEAD ATTORNEY

Nathan M Olsen PETERSEN MOSS HALL & OLSEN 485 "E" St Idaho Falls, ID 83402 (208) 523−4650 Fax: (208) 524−3391 Email: nolsen@pmholaw.com LEAD ATTORNEY

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 4 of 22

Intervenor Defendant Idaho Cattle Association
Intervenor Defendant Washington County Farm Bureau

Sonya D. Jones Pacific Legal Foundation 10940 NE 33rd Place, Ste 210 Bellevue, WA 98004 425−753−0984 Fax: 425−576−9565 Email: redraider2x@yahoo.com LEAD ATTORNEY
Russell C Brooks PACIFIC LEGAL FOUNDATION 10940 NE 33rd Pl Ste 210 Bellevue, WA 98004 (425) 576−0484 TERMINATED: 03/22/2007 PRO HAC VICE
represented by James S Burling (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared Wayne Allen (See above for address) LEAD ATTORNEY
Nathan M Olsen (See above for address) LEAD ATTORNEY
Sonya D. Jones (See above for address) LEAD ATTORNEY
Russell C Brooks (See above for address) TERMINATED: 03/22/2007 PRO HAC VICE
represented by James S Burling (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jared Wayne Allen (See above for address) LEAD ATTORNEY
Nathan M Olsen (See above for address) LEAD ATTORNEY
Sonya D. Jones (See above for address) LEAD ATTORNEY
Russell C Brooks (See above for address) TERMINATED: 03/22/2007

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 5 of 22

PRO HAC VICE

Intervenor Defendant Custer County Farm Bureau

represented by James S Burling (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jared Wayne Allen (See above for address) LEAD ATTORNEY

Nathan M Olsen (See above for address) LEAD ATTORNEY

Sonya D. Jones (See above for address) LEAD ATTORNEY

Russell C Brooks (See above for address) TERMINATED: 03/22/2007 PRO HAC VICE

Intervenor Defendant Lost Rivers Farm Bureau

represented by James S Burling (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jared Wayne Allen (See above for address) LEAD ATTORNEY

Nathan M Olsen (See above for address) LEAD ATTORNEY

Sonya D. Jones (See above for address) LEAD ATTORNEY

Russell C Brooks (See above for address) TERMINATED: 03/22/2007 PRO HAC VICE

Intervenor Defendant
Oregon Livestock Producer Association

represented by James S Burling (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jared Wayne Allen (See above for address) LEAD ATTORNEY

Nathan M Olsen (See above for address)

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 6 of 22

LEAD ATTORNEY

Sonya D. Jones (See above for address) LEAD ATTORNEY

Russell C Brooks (See above for address) TERMINATED: 03/22/2007 PRO HAC VICE

Intervenor Defendant Wyoming Farm Bureau Federation

represented by James S Burling (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jared Wayne Allen (See above for address) LEAD ATTORNEY

Nathan M Olsen (See above for address) LEAD ATTORNEY

Sonya D. Jones (See above for address) LEAD ATTORNEY

Russell C Brooks (See above for address) TERMINATED: 03/22/2007 PRO HAC VICE

Intervenor Defendant Nevada Farm Bureau

represented by James S Burling (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jared Wayne Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan M Olsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sonya D. Jones (See above for address) LEAD ATTORNEY

Russell C Brooks (See above for address) TERMINATED: 03/22/2007 PRO HAC VICE

Intervenor Defendant Wyoming Stock Growers Association

represented by

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 7 of 22

William Gerry Myers , III (See above for address) LEAD ATTORNEY

Intervenor Defendant Petroleum Association of Wyoming

represented by William Gerry Myers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant State of Colorado

represented by David Fermin Hensley (See above for address) LEAD ATTORNEY

Timothy J Monahan Natural Resources and Environment Section 1525 Sherman St, 5th Floor Denver, CO 80203 Email: tim.monahan@state.co.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Gerry Myers , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/14/2006
07/17/2006
07/17/2006 07/18/2006 07/19/2006
09/14/2006 09/18/2006 09/18/2006 09/18/2006 09/18/2006

# Docket Text
1 COMPLAINT against US Fish and Wildlife Service ( Filing fee $ 350 receipt number 162717.), filed by Western Watersheds Project. (Attachments: # 1 Cover Sheet # 2 Summons)(Lucas, Laurence)
2 NOTICE of Assignment to Magistrate Judge and Requirement for Consent sent to counsel for Western Watersheds Project re 1 Complaint (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )
Summons Issued as to US Fish and Wildlife Service. (ja, )
3 AN OBJECTION TO A US MAGISTRATE JUDGE HAS BEEN FILED IN THIS CASE. (ja) (Entered: 07/19/2006)
DOCKET ENTRY NOTICE of Case Number Change, Case reassigned to Judge B. Lynn Winmill for all further proceedings. Judge Larry M. Boyle no longer assigned to case. Please use this case number on all future pleadings, CV 06−277−E−BLW (ja)
4 SUMMONS Returned Executed by Western Watersheds Project. US Fish and Wildlife Service served on 7/24/2006, answer due 9/22/2006. (Lucas, Laurence)
5 MOTION for Leave to Appear Pro Hac Vice for Michael Wigmore by Anadarko Petroleum Corporation. Responses due by 10/12/2006 (Allen, Gary)
6 MOTION for Leave to Appear Pro Hac Vice for Sandra Franco by Anadarko Petroleum Corporation. Responses due by 10/12/2006 (Allen, Gary)
7 Corporate Disclosure Statement by Anadarko Petroleum Corporation identifying None as Corporate Parent. (Allen, Gary)
8 MOTION to Intervene by Anadarko Petroleum Corporation. Responses due by 10/12/2006 (Allen, Gary)

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09/18/2006 09/18/2006 09/19/2006
09/19/2006 09/19/2006 09/19/2006 09/19/2006 09/19/2006
09/19/2006 09/19/2006 09/19/2006 09/19/2006 09/20/2006
09/20/2006 09/26/2006

9 MEMORANDUM in Support re 8 MOTION to Intervene filed by Anadarko Petroleum Corporation. (Allen, Gary)
10 DECLARATION of Thomas Clayson re 8 MOTION to Intervene filed by Anadarko Petroleum Corporation. (Allen, Gary)
CORRECTIVE ENTRY − Docket numbers 6 MOTION for Leave to Appear Pro Hac Vice for Sandra Franco filed by Anadarko Petroleum Corporation and 5 MOTION for Leave to Appear Pro Hac Vice for Michael Wigmore filed by Anadarko Petroleum Corporation, were inadvertently filed using the incorrect motion relief. Please disregard them, they are being re−filed. (ja)
CORRECTIVE ENTRY − The entry docket number 8 MOTION to Intervene filed by Anadarko Petroleum Corporation, was inadvertently filed with the incorrect PDF image attached. Please disregard it. The Motion shall be re−filed with the correct PDF image attached. (ja)
11 First MOTION FOR PRO HAC VICE APPEARANCE by Gary G Allen for Sandra P. Franco ( Filing fee $ 200 receipt number 180313.) by on behalf of Anadarko Petroleum Corporation. Responses due by 10/13/2006 (Allen, Gary)
12 First MOTION FOR PRO HAC VICE APPEARANCE by Gary G Allen for Michael B. Wigmore ( Filing fee $ 200 receipt number 180342.) by on behalf of Anadarko Petroleum Corporation. Responses due by 10/13/2006 (Allen, Gary)
13 MOTION to Intervene by Anadarko Petroleum Corporation. Responses due by 10/13/2006 (Attachments: # 1 Memorandum in Support # 2 Declaration of Tom Clayson)(Allen, Gary)
14 DOCKET ENTRY ORDER approving 11 Motion for Pro Hac Vice Appearance of attorney Sandra P Franco for Anadarko Petroleum Corporation Per General Order 206, out−of−state counsel shall immediately register for ECF., approving 12 Motion for Pro Hac Vice Appearance of attorney Michael B Wigmore for Anadarko Petroleum Corporation Per General Order 206, out−of−state counsel shall immediately register for ECF. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )
15 ANSWER to Complaint by US Fish and Wildlife Service.(Williams, Robert)
16 Amended MOTION to Intervene by Anadarko Petroleum Corporation. Responses due by 10/13/2006 (Attachments: # 1 Memorandum in Support # 2 Amended Declaration of Tom Clayson)(Allen, Gary)
17 MOTION to Intervene by State of Wyoming. Responses due by 10/13/2006 (Attachments: # 1 Memorandum in Support # 2 Affidavit Declaration of Tom Christiansen# 3 Exhibit Proposed Answer)(Myers, William)
18 MOTION FOR PRO HAC VICE APPEARANCE by William Gerry Myers, III, William Gerry Myers, III, William Gerry Myers, III for Robert A. Nicholas ( Filing fee $ 200 receipt number 180763.) by on behalf of State of Wyoming. Responses due by 10/13/2006 (Myers, William)
19 DOCKET ENTRY ORDER approving 18 Motion for Pro Hac Vice Appearance of attorney Robert A Nicholas for State of Wyoming Per General Order 206, out−of−state counsel shall immediately register for ECF. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ta).
20 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for US Fish and Wildlife Service re 15 Answer to Complaint (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ta, )
21 NOTICE of Hearing: Telephone Scheduling Conference set for 11/1/2006 08:00 AM before Honorable B. Lynn Winmill. (Attachments: # 1 Litigation Plan Letter# 2 Litigation Plan)(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 9 of 22

09/27/2006
10/06/2006 10/13/2006 10/19/2006
10/19/2006 10/20/2006 10/23/2006 10/24/2006 10/25/2006 10/25/2006 10/26/2006 10/31/2006 11/08/2006
11/30/2006 12/01/2006
12/11/2006

22 DOCKET ENTRY NOTICE of Hearing: Telephone Scheduling Conference set for 11/1/2006 at 8:00 AM HAS BEEN RESCHEDULED FOR 11/8/2006 08:00 AM before Honorable B. Lynn Winmill. All other information contained in the original notice shall remain in effect.(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
23 MEMORANDUM in Opposition re 17 MOTION to Intervene, 16 Amended MOTION to Intervene PLAINTIFFS' RESPONSE TO MOTIONS TO INTERVENE filed by Western Watersheds Project. Replies due by 10/23/2006. (Lucas, Laurence)
24 MOTION to Intervene by James E. Risch. Responses due by 11/6/2006 (Attachments: # 1 Memorandum in Support of Governor's Motion to Intervene# 2 Exhibit Governor's Proposed Answer# 3 Affidavit Hemker Declaration)(Hensley, David)
25 REPLY to Response to Motion re 16 Amended MOTION to Intervene filed by Anadarko Petroleum Corporation. (Attachments: # 1 Exhibit Attachment to Reply Memorandum (copy of Order in Center for Biological Diversity)# 2 Certificate of Service)(Meyer, Christopher)
26 NOTICE of Appearance by Deborah A Ferguson on behalf of US Fish and Wildlife Service (Ferguson, Deborah)
27 REPLY to Response to Motion re 24 MOTION to Intervene, 17 MOTION to Intervene, 16 Amended MOTION to Intervene filed by US Fish and Wildlife Service. (Williams, Robert)
28 REPLY to Response to Motion re 24 MOTION to Intervene filed by James E. Risch. (Hensley, David)
29 REPLY to Response to Motion re 17 MOTION to Intervene filed by State of Wyoming. (Myers, William)
30 MEMORANDUM in Opposition re 24 MOTION to Intervene PLAINTIFF'S RESPONSE TO IDAHO'S MOTION TO INTERVENE filed by Western Watersheds Project. Replies due by 11/8/2006. (Lucas, Laurence)
31 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Western Watersheds Project, US Fish and Wildlife Service. (Lucas, Laurence)
32 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by State of Wyoming. (Myers, William)
33 NOTICE of Appearance by Thomas C. Perry on behalf of James E. Risch (Perry, Thomas)
34 CASE MANAGEMENT ORDER Hearing on dispositive motions set for 7/9/2007 at 9:00 a.m. in Boise, ID before the Honorable B. Lynn Winmill. Administrative Record due by 12/4/2006, objections (if any) due by 1/15/2007. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jlg, )
35 MOTION to Amend/Correct 34 Order, by US Fish and Wildlife Service. Responses due by 12/26/2006 (Attachments: # 1 Proposed Order)(Williams, Robert).
CORRECTIVE ENTRY − The entry document number 35 MOTION to Amend/Correct 34 Order, filed by US Fish and Wildlife Service was filed incorrectly in this case. Pursuant to the ECF Procedures, section 12B, all proposed orders are to be submitted by email to the appropriate Judges proposed order email box. The filing party shall re−submit their proposed order. (ta, )
36 MOTION to Intervene by Idaho Farm Bureau Federation, Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation, Nevada Farm Bureau. Responses due by 1/4/2007 (Attachments: # 1 Memorandum in Support Motion to Intervene# 2 Affidavit Declaration of Doug Busselman in Support of Motion to Intervene# 3 Affidavit Declaration of Margene Eiguren in Support of Motion to Intervene# 4 Affidavit Declaration of Rick Keller in Support of Motion to Intervene# 5 Proposed Answer)(Allen, Jared)

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 10 of 22

12/11/2006 12/11/2006 12/12/2006
12/13/2006 12/15/2006 12/18/2006 01/06/2007 01/10/2007
01/11/2007 01/11/2007 01/12/2007 01/15/2007 01/16/2007
01/16/2007 01/22/2007

37 MOTION FOR PRO HAC VICE APPEARANCE for Idaho Farm Bureau Federation ( Filing fee $ 200 receipt number 202934.) by Russell C Brooks. Responses due by 1/4/2007 (Allen, Jared)
38 MOTION FOR PRO HAC VICE APPEARANCE for Idaho Farm Bureau Federation ( Filing fee $ 200 receipt number 202948.) by Sonya D. Jones. Responses due by 1/4/2007 (Allen, Jared)
39 DOCKET ENTRY ORDER approving 37 & 38 Motions for Pro Hac Vice Appearance of attorney Sonya D. Jones and Russell C. Brooks (Notice sent to CM/ECF Registration Clerk); Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )
40 ERRATA by Intervenor Defendant Idaho Farm Bureau Federation re 36 MOTION to Intervene. (Allen, Jared)
41 Administrative Record by Robert Pendleton Williams on behalf of US Fish and Wildlife Service. (Attachments: # 1 Exhibit)(Williams, Robert)
42 Administrative Record by Robert Pendleton Williams on behalf of US Fish and Wildlife Service. (Attachments: # 1 Exhibit)(Williams, Robert) (3 CD−ROM Disks in Envelope on shelf in Clerk's Office).
43 MEMORANDUM in Opposition re 36 MOTION to Intervene Plaintiff's Opposition To Farm Bureau Motion To Intervene filed by Western Watersheds Project. Replies due by 1/22/2007. (Lucas, Laurence)
44 DOCKET ENTRY ORDER − Pending before the Court is the unopposed Motion 35 filed by Defendant U.S. Fish and Wildlife Service's to Amend the Scheduling Order. The Court having considered the pleadings shall approve the Motion as follows: (1) Defendant shall file the administrative record on or before December 18, 2006; (2) Any objections to the administrative record shall be filed on or before January 29, 2007; (3) The remaining deadlines set forth in the Scheduling Order shall remain unchanged; and (4) The hearing on the Motion for Summary Judgment remains as previously scheduled on Monday, July 9, 2007 at 9:00 a.m. to 11:00 a.m. in Boise, Idaho. Signed by Judge B. Lynn Winmill. (sbh)
45 MOTION to Intervene by Wyoming Stock Growers Association, Petroleum Association of Wyoming. Responses due by 2/5/2007 (Attachments: # 1 # 2 # 3 # 4)(Myers, William)
46 Corporate Disclosure Statement by Wyoming Stock Growers Association, Petroleum Association of Wyoming identifying None as Corporate Parent. (Myers, William)
47 MOTION to Intervene by State of Colorado. Responses due by 2/5/2007 (Attachments: # 1 Exhibit Proposed Answer# 2 Memorandum in Support # 3 Affidavit (Declaration) of Thomas Remington)(Myers, William)
48 APPLICATION FOR PRO HAC VICE APPEARANCE for Timothy J. Monahan as counsel for the State of Colorado ( Filing fee $ 200 receipt number 211501.) by William Gerry Myers, III. Responses due by 2/8/2007 (Myers, William) Modified on 1/16/2007 to edit text (ja, ).
49 DOCKET ENTRY ORDER approving 48 Motion for Pro Hac Vice Appearance of attorney Timothy J Monahan for State of Colorado Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )
50 MEMORANDUM in Opposition re 45 MOTION to Intervene, 47 MOTION to Intervene Plaintiff's Opposition To Further Motions To Intervene filed by Western Watersheds Project. Replies due by 1/30/2007. (Lucas, Laurence)
51 REPLY to Response to Motion re 36 MOTION to Intervene by Defendant−Intervenor Applicants filed by Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation,

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01/26/2007 01/27/2007 01/30/2007 01/30/2007 02/02/2007 02/19/2007 03/09/2007
03/14/2007 03/14/2007
03/15/2007 03/22/2007

Nevada Farm Bureau. (Jones, Sonya)
52 STIPULATION re 44 Order,, Stipulation To Extend Time For Objections To Record by Western Watersheds Project. (Lucas, Laurence)
53 DOCKET ENTRY ORDER − Pending before the Court is the Stipulation of counsel 52 to Extend Time for filing Objection to the Record. The Court having considered the pleadings shall approve the Stipulation. The Objections shall be filed on or before February 19, 2007. The hearing on the Motion for Summary Judgment remains as previously scheduled on Monday, July 9, 2007 at 9:00 a.m. to 11:00 a.m. in Boise, Idaho. Signed by Judge B. Lynn Winmill. (sbh)
54 REPLY to Response to Motion re 47 MOTION to Intervene filed by State of Colorado. (Myers, William)
55 REPLY to Response to Motion re 45 MOTION to Intervene filed by Wyoming Stock Growers Association, Petroleum Association of Wyoming. (Myers, William)
56 Administrative Record by Robert Pendleton Williams on behalf of US Fish and Wildlife Service. (Attachments: # 1 Manual Filing Notification)(Williams, Robert) (10 CDs in file folder on shelf in Clerk's Office [2 sets of 5 CDs] ).
57 MOTION to Compel Plaintiff WWP's Objections To Administrative Record, And Motion To Compel Supplementation by Western Watersheds Project. Responses due by 3/15/2007 (Attachments: # 1 Exhibit A −− Washington Post Article# 2 Exhibit B −− New York Times Article)(Lucas, Laurence)
58 MEMORANDUM DECISION AND ORDER Granting in part and Denying in Part the Motions to Intervene: 16 Amended MOTION to Intervene filed by Anadarko Petroleum Corporation, 17 MOTION to Intervene filed by State of Wyoming, 24 MOTION to Intervene filed by James E. Risch, 45 MOTION to Intervene filed by Petroleum Association of Wyoming, Wyoming Stock Growers Association, 36 MOTION to Intervene filed by Idaho Farm Bureau Federation, Custer County Farm Bureau, Idaho Cattle Association, Lost Rivers Farm Bureau, Washington County Farm Bureau, Oregon Livestock Producer Association, Nevada Farm Bureau, Wyoming Farm Bureau Federation, 47 MOTION to Intervene filed by State of Colorado. They are granted to the extent they seek to intervene only for the purpose of challenging any proposed remedy beyond a remand to the Service for the purpose of conducting a proper process under the ESA. They are denied in all other respects. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )
59 STIPULATION re 34 Order, Stipulation To Extend Briefing Schedule by Western Watersheds Project. (Lucas, Laurence)
60 DOCKET ENTRY ORDER − Pending before the Court is the Stipulation 59 to Extend Briefing Schedule Time For Objections To Record 58 submitted by Plaintiff Western Watersheds Project and Defendant U.S. Fish and Wildlife Service. Good cause appearing, IT IS ORDERED THAT said Stipulation is APPROVED. The summary judgment briefing as set forth in the Case Management Order 34 is modified as follows: (1) Monday, April 9, 2007: WWP opening summary judgment brief due; (2) Monday, May 14, 2007: Service opening/response summary judgment brief due; (3) Monday, June 4, 2007: WWP response/reply summary judgment brief due; (4) Monday, June 25, 2007: Service reply summary judgment brief due; and (5) The hearing date of July 9, 2007 will remain as established in the Case Management Order, and is unaffected by this Order. Signed by Judge B. Lynn Winmill. (sbh)
61 RESPONSE to Motion re 57 MOTION to Compel Plaintiff WWP's Objections To Administrative Record, And Motion To Compel Supplementation filed by US Fish and Wildlife Service. Replies due by 3/29/2007. (Attachments: # 1 Declaration# 2 Exhibit)(Williams, Robert)
62 NOTICE OF DEATH Upon the Record as to Attorney Russell C. Brooks by Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Oregon Livestock Producer Association, Nevada Farm Bureau (Jones, Sonya)

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03/23/2007
03/23/2007
03/23/2007 03/23/2007 03/26/2007 03/26/2007 03/26/2007 03/26/2007 03/26/2007 03/28/2007
03/28/2007
03/29/2007

63 NOTICE OF APPEAL (Interlocutory) as to 58 Memorandum Decision, Order, Terminate Motions by Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation, Nevada Farm Bureau, Wyoming Stock Growers Association, Petroleum Association of Wyoming, Anadarko Petroleum Corporation. Filing fee $ 455, receipt number 230594. (Notice sent by e−mail to Court Reporter) (Attachments: # 1 Docketing Statement# 2 Representation Statement)(Meyer, Christopher)
64 Expedited MOTION to Stay Pending Appeal by Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation, Nevada Farm Bureau, Wyoming Stock Growers Association, Petroleum Association of Wyoming, Anadarko Petroleum Corporation. Responses due by 4/16/2007 (Attachments: # 1 Memorandum in Support)(Meyer, Christopher)
65 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 63 Notice of Appeal, (ja, )
66 CERTIFICATE of Record on Appeal re 63 Notice of Appeal, (ja, )
67 RESPONSE to Motion re 64 Expedited MOTION to Stay Pending Appeal filed by US Fish and Wildlife Service. Replies due by 4/9/2007. (Williams, Robert)
68 NOTICE OF APPEAL (Interlocutory) as to 58 Memorandum Decision, Order, Terminate Motions by State of Colorado, State of Wyoming, James E. Risch. Filing fee $ 455, receipt number 231130. (Notice sent by e−mail to Court Reporter) (Attachments: # 1 Docketing Statement# 2 Memorandum Decision and Order# 3 Representation Statement)(Hensley, David) .
69 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 68 Notice of Appeal (ja, )
70 CERTIFICATE of Record on Appeal re 68 Notice of Appeal, (ja, )
71 Expedited Joint MOTION to Stay by State of Colorado, State of Wyoming, James E. Risch. Responses due by 4/19/2007 (Attachments: # 1 Memorandum in Support)(Hensley, David)
72 DOCKET ENTRY ORDER − The Court has received expedited motions to stay pending appeal. Under the standard briefing deadlines, the briefing on these motions will be completed by the end of April, 2007. Because this is about two months before the hearing on the cross−motions for summary judgment, it will give the Court ample time to rule on the motions to stay before the summary judgment hearing. If the motions to stay are granted, the summary judgment hearing will be vacated and further proceedings stayed pending appeal. If the motions to stay are denied, the proposed intervenors will still have time to appeal that decision prior to the hearing on the summary judgment motions. Thus, the Court will not compel expedited briefs on the motions to stay, but will urge counsel to complete the briefing as quickly as possible, and then notify the Court that all briefing is complete so that the Court might rule expeditiously. Contact Dave Metcalf at(208) 334−9025 when the briefing is complete. Signed by Judge B. Lynn Winmill. (sbh)
73 MOTION FOR PRO HAC VICE APPEARANCE for Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation, Nevada Farm Bureau ( Filing fee $ 200 receipt number 232031.) by Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation, Nevada Farm Bureau. Responses due by 4/23/2007 (Olsen, Nathan)
74 DOCKET ENTRY ORDER approving 73 Application for Pro Hac Vice Appearance of attorney James S Burling for Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation, Nevada Farm Bureau Per General Order 206, out−of−state counsel shall immediately register for ECF. (Notice sent to CM/ECF Registration Clerk) (caused to

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 13 of 22

03/29/2007 04/05/2007
04/05/2007
04/05/2007 04/05/2007 04/09/2007
04/09/2007 04/09/2007 04/10/2007
04/12/2007 04/16/2007 04/16/2007

be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )
75 NOTICE by Western Watersheds Project re 57 MOTION to Compel Plaintiff WWP's Objections To Administrative Record, And Motion To Compel Supplementation NOTICE OF WITHDRAWAL OF MOTION TO COMPEL (Lucas, Laurence)
76 USCA Case Number 07−35265 for 63 Notice of Appeal,, filed by Idaho Farm Bureau Federation, Custer County Farm Bureau, Idaho Cattle Association, Lost Rivers Farm Bureau, Washington County Farm Bureau, Oregon Livestock Producer Association, Petroleum Association of Wyoming, Nevada Farm Bureau, Wyoming Stock Growers Association, Anadarko Petroleum Corporation, Wyoming Farm Bureau Federation. (ja, )
77 USCA Scheduling Order as to 63 Notice of Appeal,, filed by Idaho Farm Bureau Federation, Custer County Farm Bureau, Idaho Cattle Association, Lost Rivers Farm Bureau, Washington County Farm Bureau, Oregon Livestock Producer Association, Petroleum Association of Wyoming, Nevada Farm Bureau, Wyoming Stock Growers Association, Anadarko Petroleum Corporation, Wyoming Farm Bureau Federation. (Notice sent by e−mail to Court Reporter) (ja, )
78 USCA Case Number 07−35267 for 68 Notice of Appeal, filed by James E. Risch, State of Colorado, State of Wyoming. (ja, )
79 USCA Scheduling Order as to 68 Notice of Appeal, filed by James E. Risch, State of Colorado, State of Wyoming. (Notice sent by e−mail to Court Reporter) (ja)
80 MOTION for Summary Judgment by Western Watersheds Project. Responses due by 5/3/2007 (Attachments: # 1 Plaintiff WWPs Opening Summary Judgment Brief# 2 Plaintiff's Statement of Facts# 3 WWP Exh 1: Listing Petition# 4 WWP EXH 2: May Be Warranted Finding# 5 WWP EXH 3: Not Warranted Determination# 6 WWP EXH 4: ESA Background memo# 7 WWP EXH 5: prior listing memo# 8 WWP EXH 6: threat rankings# 9 WWP EXH 7: extinction votes# 10 WWP EXH 8: extinction bar graphs# 11 WWP EXH 9: Nov mtg memo# 12 WWP EXH 10: Allen notes# 13 WWP EXH 11: Deibert presentation# 14 WWP EXH 12: decision team votes# 15 WWP EXH 13: pop summary# 16 WWP EXH 14: Graf clean it up# 17 WWP EXH 15: JM interfere# 18 WWP EXH 16: Inspector General report)(Lucas, Laurence)
81 MOTION for Leave to File Excess Pages Unopposed Motion To Allow Oversized Opening Summary Judgment Brief by Western Watersheds Project. Responses due by 5/3/2007 (Lucas, Laurence)
82 NOTICE RE: REMEDIAL RELIEF by Western Watersheds Project re 80 MOTION for Summary Judgment, 58 Memorandum Decision Order NOTICE RE: REMEDIAL RELIEF (Lucas, Laurence)
83 DOCKET ENTRY ORDER − Pending before the Court is Western Watersheds Project's unopposed Motion To Allow Oversized Opening Summary Judgment Brief 81 . As the motion is unopposed by Defendant U.S. Fish and Wildlife Service, and good cause appearing, IT IS ORDERED THAT the motion is GRANTED, and Plaintiff may file its opening summary judgment brief totaling not more than 46 page of text. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
84 NOTICE of Hearing on Motion 80 MOTION for Summary Judgment : Motion Hearing set for 7/9/2007 09:00 AM in Boise, ID before Honorable B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
85 STIPULATION re 63 Notice of Appeal,, 68 Notice of Appeal, 64 Expedited MOTION to Stay Pending Appeal, 71 Joint MOTION to Stay by Anadarko Petroleum Corporation. (Meyer, Christopher)
86 ORDER of USCA as to 63 Notice of Appeal,, filed by Idaho Farm Bureau Federation, Custer County Farm Bureau, Idaho Cattle Association, Lost Rivers Farm Bureau, Washington County Farm Bureau, Oregon Livestock Producer Association, Petroleum Association of Wyoming, Nevada Farm Bureau, Wyoming Stock Growers Association, Anadarko Petroleum Corporation, Wyoming Farm Bureau Federation (ja,

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 14 of 22

04/17/2007 05/07/2007 05/08/2007 05/10/2007 05/10/2007
05/11/2007
05/11/2007
05/11/2007 05/14/2007 05/16/2007

) (Entered: 04/17/2007)
87 DOCKET ENTRY ORDER − The Court hereby APPROVES IN FULL the Stipulation 85 , and adopts the deadlines and procedures contained therein. Signed by Judge B. Lynn Winmill. (sbh) Modified on 4/18/2007 to link to dkt #85 (ja).
88 WITHDRAWAL OF DOCUMENT re: 64 Expedited MOTION to Stay Pending Appeal filed by Idaho Farm Bureau Federation, Custer County Farm Bureau, Idaho Cattle Association, Lost Rivers Farm Bureau, Washington County Farm Bureau, Oregon Livestock Producer Association, Petroleum Association of Wyoming, Nevada Farm Bureau, Wyoming Stock Growers Association, Anadarko Petroleum Corporation, Wyoming Farm Bureau Federation. (Meyer, Christopher)
89 NOTICE by State of Colorado, State of Wyoming, James E. Risch re 71 Joint MOTION to Stay (Hensley, David)
90 MOTION for Extension of Time to File Response/Reply Defendant's Unopposed Motion for Extension of Time to File its Combined Opposition to Plaintiffs Motion for Summary Judgment and Cross−motion for Summary Judgment by US Fish and Wildlife Service. Responses due by 6/4/2007 (Williams, Robert)
91 ORDER of USCA as to 63 Notice of Appeal, filed by Idaho Farm Bureau Federation, Custer County Farm Bureau, Idaho Cattle Association, Lost Rivers Farm Bureau, Washington County Farm Bureau, Oregon Livestock Producer Association, Petroleum Association of Wyoming, Nevada Farm Bureau, Wyoming Stock Growers Association, Anadarko Petroleum Corporation, Wyoming Farm Bureau Federation. Appellants' motion for voluntary dismissal of this appeal is granted. This appeal is dismissed. The certified copy of this order sent to the District Court shall constitute the mandate. (ja)
92 DOCKET ENTRY ORDER − Pending before the Court is Defendant U.S. Fish and Wildlife Service's Unopposed Motion 90 for Extension of Time to File its Combined Opposition to Plaintiffs Motion for Summary Judgment and Cross−motion for Summary Judgment. The Court having considered the pleadings, shall grant the motion. It is hereby ordered as follows: (1) Defendant and Intervenor−Defendants shall have until May 21, 2007 to file their oppositions and cross−motions for summary judgment; and (2) Plaintiff shall have until June 11, 2007 to file its combined opposition and reply. The remaining deadlines set forth in the Scheduling Order shall remain unchanged. Signed by Judge B. Lynn Winmill.(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
93 Consent MOTION for Leave to File Excess Pages by Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation, Nevada Farm Bureau, Wyoming Stock Growers Association, Petroleum Association of Wyoming, State of Colorado, Anadarko Petroleum Corporation, State of Wyoming, James E. Risch. Responses due by 6/4/2007 (Myers, William)
Set/Reset Deadlines as to 80 MOTION for Summary Judgment. This is a court utility event only. Responses due by 5/21/2007 Replies due by 6/11/2007. (ja, ) (Entered: 05/14/2007)
Set Deadlines/Hearings: This is a court utility event only. Case Management deadline set for 5/21/2007 for defendant and Intervenor−defs to file their cross−motions for summary judgment. (ja, )
94 DOCKET ENTRY ORDER − Pending before the Court is the unopposed motion 93 of Defendants−Intervenors for leave to file over−length briefs in support of both their cross−motions for summary judgment and their responses to Plaintiffs motion for summary judgment, and the State Intervenors request for leave to file an over−length statement of facts. IT IS HEREBY ORDERED that the Motion is GRANTED, and Defendants−Intervenors may file their briefs totaling not more than 35 pages of text and that the state Intervenors may file a statement of facts not to exceed 15 pages in length. The private party Intervenors shall file a statement of facts not to exceed 10 pages in length. Signed by Judge B. Lynn Winmill. (caused to be mailed to non

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 15 of 22

05/21/2007 05/21/2007
05/21/2007 05/21/2007 05/21/2007 05/21/2007
05/21/2007 05/21/2007 05/21/2007 05/22/2007
05/29/2007
06/10/2007

Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment by Anadarko Petroleum Corporation. Responses due by 6/14/2007 (Attachments: # 1 Memorandum in Support Response to WWP's Motion for Summary Judgment & Memorandum in Support of Cross−Motion for Summary Judgment# 2 Statement of Material Facts)(Meyer, Christopher)
96 DECLARATION of Christopher Meyer re 95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment filed by Anadarko Petroleum Corporation. (Attachments: # 1 Appendix 4_172# 2 Appendix 4_213# 3 Appendix 4_218# 4 Appendix 4_223# 5 Appendix BLM76# 6 Appendix PC−34# 7 Appendix PC−37# 8 Appendix PC−46# 9 Appendix PC−761# 10 Appendix PC−781# 11 Appendix PC−801# 12 Appendix PC−868# 13 Appendix BLM2004a# 14 Appendix EM639# 15 Appendix EM1307# 16 Appendix EM5442# 17 Appendix EM5454# 18 Appendix EM8052# 19 Appendix EM8627)(Meyer, Christopher)
97 Cross MOTION for Summary Judgment by US Fish and Wildlife Service. Responses due by 6/14/2007 (Attachments: # 1 Exhibit Washington State Farm Bureau v. NMFS, No. C06−388Z (W.D. Wash., Dec. 20, 2006)# 2 Affidavit Declaration of Thomas R. Graf# 3 Defendant's Response to Plaintiff's Statement of Facts)(Williams, Robert)
98 MEMORANDUM in Opposition re 80 MOTION for Summary Judgment filed by US Fish and Wildlife Service. Replies due by 6/5/2007. (Attachments: # 1 Exhibit Washington State Farm Bureau v. NMFS, No. C06−388Z (W.D. Wash., Dec. 20, 2006)# 2 Affidavit Declaration of Thomas R. Graf# 3 Defendant's Response to Plaintiff's Statement of Facts)(Williams, Robert)
99 Consent MOTION for Leave to File Excess Pages by US Fish and Wildlife Service. Responses due by 6/14/2007 (Williams, Robert)
100 MOTION for Summary Judgment by State of Colorado, State of Wyoming, James E. Risch. Responses due by 6/14/2007 (Attachments: # 1 Memorandum in Support # 2 Exhibit WAFWA Graphing for 1995−2004# 3 Exhibit Solicitor's Opinion: DOI# 4 Exhibit BLM Conservation Efforts# 5 Statement of Facts# 6 Exhibit 2nd Hemker Declaration# 7 Exhibit Hemker Exhibit 1# 8 Exhibit Hemker Exhibit 2)(Hensley, David)
101 CERTIFICATE OF SERVICE by Anadarko Petroleum Corporation re 96 Declaration,, (Meyer, Christopher)
102 CERTIFICATE OF SERVICE by Anadarko Petroleum Corporation re 95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment (Meyer, Christopher)
104 ORDER of USCA as to 68 Notice of Appeal, filed by James E. Risch, State of Colorado, State of Wyoming. Appellants' motion for voluntary dismissal of this appeal is granted. (ja, ) (Entered: 05/22/2007)
103 DOCKET ENTRY NOTICE of Hearing on Motion 95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment, 97 Cross MOTION for Summary Judgment, 100 MOTION for Summary Judgment : Motion Hearing set for 7/9/2007 09:00 AM in Boise, ID before Honorable B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
105 DOCKET ENTRY ORDER − Pending before the Court is the unopposed Consent Motion 99 filed the the U.S. Fish and Wildlife Service for Leave to File an Overlength Brief. The Court having considered the pleadings shall grant the motion. IT IS HEREBY ORDERED that the overlength brief is hereby ordered filed. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
106 REPLY to Response to Motion re 80 MOTION for Summary Judgment, 97 Cross MOTION for Summary Judgment Plaintiff WWPs Combined Reply Brief In Support Of Its Summary Judgment Motion, And Response Brief Opposing Defendant's Motion For Summary Judgment filed by Western Watersheds Project. (Attachments: # 1

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 16 of 22

06/10/2007 06/10/2007 06/11/2007
06/12/2007 06/13/2007 06/25/2007
06/25/2007 06/25/2007 06/25/2007 06/29/2007 07/09/2007
10/04/2007

Declaration of Jon Marvel# 2 Certificate of Service)(Lucas, Laurence)
107 MOTION for Leave to File Excess Pages Motion For Leave To File Overlength Combined Reply/Response Summary Judgment Brief by Western Watersheds Project. Responses due by 7/9/2007 (Lucas, Laurence)
108 MEMORANDUM in Opposition re 100 MOTION for Summary Judgment, 95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment Plaintiff WWP's Response Brief Opposing Intervenors' Motions For Summary Judgment filed by Western Watersheds Project. Replies due by 6/25/2007. (Lucas, Laurence)
109 DOCKET ENTRY ORDER − Pending before the Court is Plaintiff's Motion To Allow Oversized Reply/Response Summary Judgment Brief 107 , which totals 44 pages of text and represents a combined reply brief in support of Plaintiff's motion for summary judgment and response brief opposing Defendant's motion for summary judgment. The Court having considered the pleadings shall grant the motion. IT IS HEREBY ORDERED that the motion is GRANTED, and Plaintiff may file its proposed Combined Reply/Response Summary Judgment Brief totaling not more than 44 pages of text. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
110 RESPONSE to Motion re 100 MOTION for Summary Judgment, 95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment, 97 Cross MOTION for Summary Judgment filed by Western Watersheds Project. Replies due by 6/29/2007. (Tucci, Todd) Modified on 6/13/2007 to link to dkt #80 (ja, ).
Set/Reset Deadlines as to 97 Cross MOTION for Summary Judgment, 95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment, 100 MOTION for Summary Judgment. This is a court utility event only. Replies due by 6/25/2007. See docket order #60 (ja)
111 REPLY to Response to Motion re 95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment filed by Anadarko Petroleum Corporation. (Attachments: # 1 Certificate of Service# 2 Declaration of Christopher H. Meyer# 3 Exhibit 4_56 to Declaration# 4 Exhibit 4−134 to Declaration# 5 Exhibit 4_213 to Declaration# 6 Exhibit 4_220 to Declaration# 7 Exhibit PC_580 to Declaration# 8 Exhibit PC_868 to Declaration# 9 Certificate of Service for Declaration)(Meyer, Christopher)
112 REPLY to Response to Motion re 97 Cross MOTION for Summary Judgment filed by US Fish and Wildlife Service. (Williams, Robert)
113 Consent MOTION for Leave to File Excess Pages by US Fish and Wildlife Service. Responses due by 7/23/2007 (Williams, Robert)
114 REPLY to Response to Motion re 100 MOTION for Summary Judgment filed by State of Colorado, State of Wyoming, James E. Risch. (Perry, Thomas)
115 NOTICE by Wyoming Stock Growers Association, Petroleum Association of Wyoming of Supplemental Authority (Attachments: # 1 NAHB v. Defenders, 06−340)(Myers, William)
116 Minute Entry for proceedings held before Judge B. Lynn Winmill : Motion Hearing held on 7/9/2007 re 100 MOTION for Summary Judgment filed by James E. Risch, State of Colorado, State of Wyoming, 95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment filed by Anadarko Petroleum Corporation, 80 MOTION for Summary Judgment filed by Western Watersheds Project, 97 Cross MOTION for Summary Judgment filed by US Fish and Wildlife Service. Matters deemed UNDER ADVISEMENT. (Court Reporter Stacy Heinz.) (lg, )
117 DOCKET ENTRY ORDER − Pending before the Court is Defendant U.S. Fish and Wildlife Service's unopposed Motion 113 for Leave to File Excess Pages. The Court having considered the pleadings shall grant the motion. IT IS HEREBY ORDERED that Defendant may file a reply brief in support of its combined opposition to Plaintiff's motion for summary judgment and cross−motion for summary judgment not exceeding 25 pages of text. Signed by Judge B. Lynn Winmill. (caused to be mailed to

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 17 of 22

12/04/2007 12/04/2007 12/04/2007 12/18/2007 12/18/2007 12/19/2007 12/21/2007 12/24/2007
01/08/2008

non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
118 MEMORANDUM DECISION re: 80 MOTION for Summary Judgment filed by Western Watersheds Project. The Court will grant WWPs motion for summary judgment, reverse the FWS's decision, and remand the case to the agency for further consideration. The Court will deny the other motions, and will issue a separate Judgment as required by Rule 58(a)(1). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )
119 JUDGMENT Granting 80 MOTION for Summary Judgment filed by Western Watersheds Project; Denying 97 Cross MOTION for Summary Judgment filed by US Fish and Wildlife Service; Denying 100 MOTION for Summary Judgment filed by James E. Risch, State of Colorado, State of Wyoming; Denying 95 Cross MOTION for Summary Judgment and Response to WWP's Motion for Summary Judgment filed by Anadarko Petroleum Corporation. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by ja, )
120 DOCKET ENTRY ORDER − For recordkeeping purposes, the Memorandum Decision 118 and Judgment 119 filed this date, are amended as to the caption only. The Fish and Wildlife Service replaces the U.S. Forest Service, which was inadvertently listed as the Defendant. Signed by Judge B. Lynn Winmill. (sbh)
121 MOTION for Reconsideration re 120 Order, 119 Judgment, 118] Memorandum Decision by Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation, Nevada Farm Bureau, Wyoming Stock Growers Association, Petroleum Association of Wyoming, State of Colorado, State of Wyoming, James E. Risch. Responses due by 1/11/2008 (Jones, Sonya).
122 MOTION to Alter Judgment Plaintiff's Motion To Alter Or Amend Judgment by Western Watersheds Project. Responses due by 1/11/2008 (Attachments: # 1 Memorandum in Support Brief In Support Of Motion To Alter Or Amend Judgment)(Lucas, Laurence)
123 DOCKET ENTRY NOTICE of Hearing on Motion 122 MOTION to Alter Judgment Plaintiff's Motion To Alter Or Amend Judgment : Motion Hearing set for 2/22/2008 08:30 AM in Boise, ID before Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
124 DOCKET ENTRY ORDER − The Court has before it Intervenors' motion for reconsideration. The Court fully considered Intervenor's arguments in making its earlier ruling. Accordingly, the motion to reconsider 121 is DENIED.. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
125 DOCKET ENTRY ORDER − The Court previously denied Intervenors' motion for reconsideration 124 , but will now expand upon its decision. A motion seeking reconsideration is only appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law, or, perhaps, in some other highly unusual circumstances. School Dist. No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). The Court carefully considered the briefs submitted in support of the motion to reconsider and finds that the Intervenors have not presented grounds requiring the Court to reconsider its earlier decision. The Court fully considered Intervenor's arguments in making its earlier ruling. Accordingly, the motion to reconsider 121 is DENIED. Signed by Judge B. Lynn Winmill. (sbh)
126 Private Party Intervenors' Response to 122 Plaintiff's Motion To Alter Or Amend Judgment filed by Wyoming Stock Growers Association, Petroleum Association of Wyoming. Replies due by 1/28/2008.(Myers, William) Modified on 1/9/2008 to edit text (ja).

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 18 of 22

01/11/2008 01/11/2008 01/29/2008
01/30/2008 01/31/2008 02/07/2008 02/13/2008
02/13/2008 02/15/2008 02/21/2008 02/29/2008 02/29/2008
03/14/2008

127 MEMORANDUM in Opposition re 122 MOTION to Alter Judgment Plaintiff's Motion To Alter Or Amend Judgment filed by US Fish and Wildlife Service. Replies due by 1/31/2008. (Attachments: # 1 Affidavit Declaration of Bryan Arroyo, # 2 Text of Proposed Order)(Williams, Robert)
128 MEMORANDUM in Opposition re 122 MOTION to Alter Judgment Plaintiff's Motion To Alter Or Amend Judgment filed by State of Colorado, State of Wyoming, James E. Risch. Replies due by 1/31/2008. (Attachments: # 1 Exhibit Hemker Declaration, # 2 Exhibit Christiansen Declaration)(Perry, Thomas)
129 DOCKET ENTRY NOTICE of Hearing on Motion 122 MOTION to Alter Judgment Plaintiff's Motion To Alter Or Amend Judgment : DUE TO THE COURT'S TRIAL CALENDAR, THE Motion Hearing set for 2/22/2008 AT 8:30 AM HAS BEEN RESCHEDULED BY THE COURT FOR HEARING ON 2/29/2008 09:00 AM in Boise, ID before Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
130 STIPULATION re 122 MOTION to Alter Judgment Plaintiff's Motion To Alter Or Amend Judgment STIPULATION ON REMAND by Western Watersheds Project. (Attachments: # 1 Proposed Order)(Lucas, Laurence)
CORRECTIVE ENTRY − The entry document number 130 Stipulation filed by Western Watersheds Project in regards to the proposed order, was filed incorrectly in this case. Pursuant to the ECF Procedures, section 12B, all proposed orders are to be submitted by email to the appropriate Judges proposed order email box and not attached to pleadings. The filing party shall re−submit their proposed order. (jm)
131 MOTION to withdraw Stipulation Coby Howell appearing for Defendant US Fish and Wildlife Service. Responses due by 3/3/2008 (Attachments: # 1 Affidavit of Bryan Arroyo)(Howell, Coby)
132 MEMORANDUM in Opposition re 131 MOTION to withdraw Stipulation, 122 MOTION to Alter Judgment Plaintiff's Motion To Alter Or Amend Judgment WWP'S BRIEF OPPOSING SERVICE MOTION TO WITHDRAW STIPULATION ON REMAND filed by Western Watersheds Project. Replies due by 3/3/2008. (Attachments: # 1 Lucas Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Lucas, Laurence)
133 DOCKET ENTRY ORDER − Finding good cause therefore, NOW THEREFORE IT IS HEREBY ORDERED, that the Government's Motion to Withdraw Stipulation 131 shall be heard on February 29, 2008, along with the Motion to Alter or Amend 122 . Signed by Judge B. Lynn Winmill. (sbh)
134 DOCKET ENTRY NOTICE of Hearing on Motion 131 MOTION to withdraw Stipulation : Pursuant to order (doc 133) Motion Hearing set for 2/29/2008 09:00 AM in Boise, ID before Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
135 REPLY to Response to Motion re 131 MOTION to withdraw Stipulation filed by US Fish and Wildlife Service.(Williams, Robert)
136 Minute Entry for proceedings held before Judge B. Lynn Winmill: Motion Hearing held on 2/29/2008 re 122 MOTION to Alter Judgment Plaintiff's Motion To Alter Or Amend Judgment filed by Western Watersheds Project, 131 MOTION to withdraw Stipulation filed by US Fish and Wildlife Service. (Court Reporter Stacy Heinz.) (so)
137 MEMORANDUM DECISION AND ORDER Deeming as moot 122 MOTION To Alter Or Amend Judgment filed by Western Watersheds Project, Denying 131 MOTION to withdraw Stipulation filed by US Fish and Wildlife Service. The Stipulation 130 is Approved. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm, )
138 MOTION for Attorney Fees Plaintiff's Motion For Award Of Attorney Fees And Litigation Expenses Laurence J Lucas appearing for Plaintiff Western Watersheds Project. Responses due by 4/7/2008 (Lucas, Laurence)

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 19 of 22

03/14/2008 03/19/2008 03/20/2008
03/21/2008 04/07/2008
04/17/2008 04/17/2008 04/25/2008 04/28/2008 04/28/2008 04/28/2008 04/28/2008 05/05/2008

139 MOTION to Stay re 138 MOTION for Attorney Fees Plaintiff's Motion For Award Of Attorney Fees And Litigation Expenses WWP's Motion To Stay Briefing On Fees Motion Laurence J Lucas appearing for Plaintiff Western Watersheds Project. Responses due by 4/7/2008 (Lucas, Laurence)
NOTICE TO COURT that counsel Sonya D. Jones wishes to no longer be noticed electronically on this case as of the date of this notice. (Jones, Sonya)
140 RESPONSE to Motion re 139 MOTION to Stay re 138 MOTION for Attorney Fees Plaintiff's Motion For Award Of Attorney Fees And Litigation Expenses WWP's Motion To Stay Briefing On Fees Motion MOTION to Stay re 138 MOTION for Attorney Fees Plaintiff's Motion For Award Of Attorney Fees And Litigation Expenses WWP's Motion To Stay Briefing On Fees Motion filed by US Fish and Wildlife Service. Replies due by 4/7/2008.(Williams, Robert)
141 WWP's REPLY on its Motion to Stay Fees Briefing re 139 MOTION to Stay filed by Western Watersheds Project.(Lucas, Laurence) Modified on 3/21/2008 to edit text (jm).
142 DOCKET ENTRY ORDER − Pending before the Court is Plaintiff's Motion 139 to Stay Briefing on the Attorneys' Fees Motion and Defendant's Response 140 . The Court having reviewed the pleadings shall grant the motion. IT IS HEREBY ORDERED THAT briefing on Plaintiff's Motion for Award of Attorneys' Fees and Litigation Expenses 138 is stayed until May 16, 2008, at which time the Court will schedule a telephonic status conference to discuss the future course of action on Plaintiff's Motion for Award of Attorneys' Fees and Litigation Expenses. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
143 DOCKET ENTRY NOTICE of Hearing: Pursuant to the Court's docket entry order (doc 142) A Telephonic Status Conference set for 5/27/2008 01:00 PM in Boise Chambers before Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
144 DOCKET ENTRY NOTICE of Hearing: ** CLARIFICATION** Telephonic Status Conference set for 5/27/2008 01:00 PM in Boise Chambers before Judge B. Lynn Winmill. Government is directed to initiate the conference call. The Court can be reached at (208)334−9145.(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by lg, )
145 NOTICE OF APPEAL by US Fish and Wildlife Service. (Notice sent by e−mail to Court Reporter) (Attachments: # 1 Exhibit December 4, 2007 Judgment, # 2 Exhibit December 4, 2007 Memorandum Decision, # 3 Exhibit February 29, 2008 Memorandum Decision and Order)(Williams, Robert) (08−35352).
146 NOTICE OF APPEAL by Idaho Farm Bureau Federation. Filing fee $ 455, receipt number 09760000000000346757. (Notice sent by e−mail to Court Reporter) (Burling, James) (08−35353)
147 APPEAL DOCKETING STATEMENT re 146 Notice of Appeal : by Intervenor Defendant Idaho Farm Bureau Federation (Attachments: # 1 Exhibit Memorandum Decision, # 2 Exhibit Judgment, # 3 Exhibit Representation Statement)(Burling, James)
148 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 145 Notice of Appeal. NOTE: The Transcript Designation and Ordering Form is located on the Court web site at www.id.uscourts.gov>Forms>General>Transcript Designation & Ordering Form. (jm)
149 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 146 Notice of Appeal. NOTE: The Transcript Designation and Ordering Form is located on the Court web site at www.id.uscourts.gov>Forms>General>Transcript Designation & Ordering Form. (jm)
150 USCA Case Number 08−35352 for 145 Notice of Appeal, filed by US Fish and Wildlife Service. (jm) (Entered: 05/06/2008)

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151 USCA Scheduling Order as to 145 Notice of Appeal, filed by US Fish and Wildlife Service. (Notice sent by e−mail to Court Reporter) (jm) (Entered: 05/06/2008)
153 USCA Case Number 08−35353 for 146 Notice of Appeal filed by Idaho Farm Bureau Federation. (jm) (Entered: 05/08/2008)
154 USCA Time Schedule Order as to 146 Notice of Appeal filed by Idaho Farm Bureau Federation. (Notice sent by e−mail to Court Reporter) (08−35353) (jm) (Entered: 05/08/2008)
152 NOTICE by Idaho Farm Bureau Federation, Idaho Cattle Association, Washington County Farm Bureau, Custer County Farm Bureau, Lost Rivers Farm Bureau, Oregon Livestock Producer Association, Wyoming Farm Bureau Federation, Nevada Farm Bureau re: No Transcript Will Be Ordered for Appeal (Burling, James)
155 CERTIFICATE of Record on Appeal by Idaho Farm Bureau Federation re 146 Notice of Appeal (cc: 9CCA) (jm)
156 NOTICE OF APPEAL as to 125 Order, 119 Judgment 118 Memorandum Decision, Order, 124 Order on Motion for Reconsideration, by State of Wyoming. Filing fee $ 455, receipt number 09760000000000351315. (Notice sent by e−mail to Court Reporter) (Attachments: # 1 Docketing Statement, # 2 Doc 118, # 3 Doc 119, # 4 Doc 124, # 5 Doc 125, # 6 Representation Statement)(Myers, William) (08−35409).
157 APPEAL DOCKETING STATEMENT re 156 Notice of Appeal, : by Intervenor Defendant State of Wyoming AS AMENDED (Myers, William)
158 NOTICE OF APPEAL by Wyoming Stock Growers Association, Petroleum Association of Wyoming. Filing fee $ 455, receipt number 09760000000000351442. (Notice sent by e−mail to Court Reporter) (Attachments: # 1 Docketing Statement, # 2 Doc 118, # 3 Doc 119, # 4 Doc 124, # 5 Doc 125, # 6 Representation Statement)(Myers, William) (08−35414).
159 STIPULATION re 138 MOTION for Attorney Fees Plaintiff's Motion For Award Of Attorney Fees And Litigation Expenses Stipulation to Further Stay Briefing On Fees Motion by Western Watersheds Project. (Lucas, Laurence)
160 DOCKET ENTRY ORDER − Pending before the Court is the Stipulation of Counsel 159 to Stay Briefing on the Attorneys' Fees Motion 138 and Defendant's Response 140 . The Court having reviewed the pleadings shall approve the Stipulation. IT IS HEREBY ORDERED THAT briefing on Plaintiff's Motion for Award of Attorneys' Fees and Litigation Expenses 138 is stayed until August 12, 2008. Therefore, the telephone status conference currently set on May 27, 2008 at 1:00 p.m. to discuss the future course of action on Plaintiff's Motion for Award of Attorneys' Fees and Litigation Expenses is VACATED. The telephonic status conference shall be reset on August 28, 2008 at 1:00 p.m. Plaintiff is directed to placed the call with all counsel on the line, using a conference operator, to (208) 334−9145. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
161 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 156 Notice of Appeal. NOTE: The Transcript Designation and Ordering Form is located on the Court web site at www.id.uscourts.gov>Forms>General>Transcript Designation & Ordering Form. (jm)
162 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 158 Notice of Appeal,. NOTE: The Transcript Designation and Ordering Form is located on the Court web site at www.id.uscourts.gov>Forms>General>Transcript Designation & Ordering Form. (jm)
Set/Reset Hearings: Telephonic Status Conference reset for 8/28/2008 01:00 PM in Boise Chambers before Judge B. Lynn Winmill. (jm) (Entered: 05/14/2008)
163 NOTICE by Wyoming Stock Growers Association, Petroleum Association of Wyoming That No Transcript Will Be Ordered (Myers, William)
164 NOTICE by State of Wyoming That No Transcript Will Be Ordered (Myers, William)

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 21 of 22

05/19/2008 05/19/2008 05/19/2008 05/19/2008 05/21/2008 05/21/2008 08/22/2008
08/26/2008
08/26/2008 08/29/2008 09/11/2008 09/19/2008 10/03/2008 10/04/2008
11/06/2008

165 CERTIFICATE of Record on Appeal by State of Wyoming re 156 Notice of Appeal, (jm) (Additional attachment(s) added on 5/19/2008: # 1 Certificate of Record on Appeal) (jm).
166 CERTIFICATE of Record on Appeal by Wyoming Stock Growers Association, Petroleum Association of Wyoming re 158 Notice of Appeal, (jm) (Additional attachment(s) added on 5/19/2008: # 1 Certificate of Record on Appeal) (jm).
167 USCA Case Number 08−35409 for 156 Notice of Appeal, filed by State of Wyoming. (jm)
168 USCA Time Schedule Order as to 156 Notice of Appeal, filed by State of Wyoming. (Notice sent by e−mail to Court Reporter) (jm)
169 USCA Case Number 08−35414 for 158 Notice of Appeal, filed by Petroleum Association of Wyoming, Wyoming Stock Growers Association. (jm)
170 USCA TIME SCHEDULE ORDER as to 158 Notice of Appeal, filed by Petroleum Association of Wyoming, Wyoming Stock Growers Association. (Notice sent by e−mail to Court Reporter) (jm) (Additional attachment(s) added on 5/21/2008: # 1 Time Schedule Order) (jm).
171 STIPULATION to Continue Briefing on Plaintiff's Motion for Attorney Fees and Costs and Vacate Status Conference. re 138 Plaintiff's Motion For Award Of Attorney Fees And Litigation Expenses, re 160 Order to Continue Briefing on Plaintiff's Motion for Attorney's Fees and Costs and Vacate Status Conference by US Fish and Wildlife Service. (Attachments: # 1 Text of Proposed Order)(Williams, Robert) Modified on 8/25/2008 to edit text (jm).
172 DOCKET ENTRY ORDER − Pending before the Court is Stipulation 171 of counsel to Stay the Briefing on Plaintiff's Motion for Attorney's Fees and Costs and Vacate Status Conference. The Court having considered the pleadings shall approve the Stipulation. IT IS HEREBY ORDERED THAT the briefing on Plaintiff's Motion for Award of Attorney's Fees and Litigation Expenses 138 is stayed until October 10, 2008 and the status conference scheduled for August 28, 2008 at 1:00 p.m. is vacated. Signed by Judge B. Lynn Winmill. (sbh)
Set/Reset Deadlines as to 138 MOTION for Attorney Fees Plaintiff's Motion For Award Of Attorney Fees And Litigation Expenses. Responses due by 10/10/2008 (dks) (Entered: 08/27/2008)
173 STATUS REPORT by US Fish and Wildlife Service. (Attachments: # 1 Declaration of James J. Slack)(Williams, Robert)
174 ORDER of USCA as to 146 Notice of Appeal filed by Idaho Farm Bureau Federation, 145 Notice of Appeal, filed by US Fish and Wildlife Service, 156 Notice of Appeal, filed by State of Wyoming, 158 Notice of Appeal, filed by Petroleum Association of Wyoming, Wyoming Stock Growers Association (jm) (Entered: 09/12/2008)
175 ORDER of USCA as to 158 Notice of Appeal, filed by Petroleum Association of Wyoming, Wyoming Stock Growers Association. The appellants' motion for voluntary dismissal of the case under Fed. R. App. P. 42(b) is granted. (jm)
176 STIPULATION to Continue Briefing on Plaintiff's Motion for Attorney's Fees and Costs by US Fish and Wildlife Service. (Attachments: # 1 Text of Proposed ORder)(Williams, Robert)
177 DOCKET ENTRY ORDER − Pending before the Court is Stipulation 176 of counsel to Stay the Briefing on Plaintiff's Motion for Attorney's Fees and Costs and Vacate Status Conference. The Court having considered the pleadings shall approve the Stipulation. IT IS HEREBY ORDERED THAT the briefing on Plaintiff's Motion for Award of Attorney's Fees and Litigation Expenses 138 is stayed until December 12, 2008. Signed by Judge B. Lynn Winmill. (sbh)
178 ORDER of USCA as to 146 Notice of Appeal filed by Idaho Farm Bureau Federation. The USA's motion to dismiss this appeal for lack of jurisdiction is granted. (jm) (Entered: 11/07/2008)

Case 4:06-cv-277 Document <docnum> Filed <datefiled> Page 22 of 22

12/03/2008 12/12/2008 12/15/2008 01/16/2009 05/29/2009 06/15/2009
02/22/2010 02/25/2010
03/08/2010 03/08/2010 03/18/2010 03/29/2010 03/31/2010 04/27/2010

179 MANDATE of USCA as to 146 Notice of Appeal filed by Idaho Farm Bureau Federation (jm) (Entered: 12/04/2008)
180 STIPULATION Regarding Plaintiff's Motion for Attorney's Fees and Costs by US Fish and Wildlife Service. (Williams, Robert)
181 ORDER The Stay in this matter is hereby lifted. The terms of the Stipulated Settlement Agreement are hereby granted. re 180 Stipulation. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)
182 STATUS REPORT by US Fish and Wildlife Service. (Attachments: # 1 Guertin Declaration)(Williams, Robert)
183 STIPULATION re 130 Stipulation Amended Stipulation on Remand by US Fish and Wildlife Service. (Williams, Robert)
184 DOCKET ENTRY ORDER − Before the Court is an Amended Stipulation on Remand 183 submitted by Plaintiff Western Watersheds Project (WWP) and Defendant U.S. Fish and Wildlife Service (Service). The Court having considered the pleadings shall approve the Stipulation. IT IS ORDERED THAT the Amended Stipulation on Remand is APPROVED and adopted as an order of the Court. IT IS FURTHER ORDERED THAT, by February 26, 2010, the Service will submit for publication in the Federal Register a new listing determination on greater sage−grouse upon remand from the Court. Signed by Judge B. Lynn Winmill. (sbh)
185 Consent MOTION for Extension of Time to File / Consent Motion to Extend Deadline In Amended Joint Stipulation On Remand Robert Pendleton Williams appearing for Defendant US Fish and Wildlife Service. Responses due by 3/18/2010 (Williams, Robert)
186 DOCKET ENTRY ORDER − Pending before the Court is the Federal Defendant's unopposed Motion 185 to extend the deadline for submission for a new listing determination on greater sage−grouse upon remand. The Court having considered the pleadings shall grant the Motion. IT IS ORDERED THAT by March 5, 2010, the Service will submit for publication in the Federal Register a new listing determination on greater sage−grouse upon remand from the Court. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by sbh)
187 AMENDED COMPLAINT proposed First Supplemental Complaint against US Fish and Wildlife Service, filed by Western Watersheds Project.(Lucas, Laurence)
188 MOTION to Supplement Motion For Leave To File First Supplemental Complaint re: 187 Amended Complaint Laurence J Lucas appearing for Plaintiff Western Watersheds Project. Responses due by 4/1/2010 (Lucas, Laurence)
189 RESPONSE to Motion re 188 MOTION to Supplement Motion For Leave To File First Supplemental Complaint re: 187 Amended Complaint filed by US Fish and Wildlife Service. Replies due by 4/5/2010.(Williams, Robert)
190 JOINDER by Intervenor Defendants James E. Risch, State of Wyoming joining 189 Response to Motion. (Myers, William) Modified on 3/30/2010 to create a relationship to Doc #188 (dks).
191 JOINDER by Intervenor Defendants Anadarko Petroleum Corporation, Idaho Cattle Association, Idaho Farm Bureau Federation, Petroleum Association of Wyoming, Wyoming Stock Growers Association joining 189 Response to Motion for Leave to File First Supplemental Complaint. (Myers, William)
192 MEMORANDUM DECISION AND ORDER denying 188 Motion for leave to file supplemental complaint. It is further ordered that if pla brings a new action raising allegations set forth in the proposed supplemental complaint, it shall be assigned to the undersigned judge for purposes of judicial economy. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

 
 Case 4:06-cv-00277-BLW Document 1 Filed 07/14/06 Page 1 of 15

Todd C. Tucci (ISB # 6526) ADVOCATES FOR THE WEST P.O. Box 1612 Boise, ID 83701 (208) 342-7024 (208) 342-8286 (fax) ttucci@advocateswest.org

Laurence (“Laird”) J. Lucas (ISB # 4733) P.O. Box 1342 Boise, Idaho 83701 (208) 424-1466 (phone and fax) llucas@lairdlucas.org

Attorneys for Plaintiff Western Watersheds Project

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

WESTERN WATERSHEDS PROJECT, )

)

Plaintiff,

)

)

vs.

)

)

U.S. FISH AND WILDLIFE SERVICE, )

an agency of the United States,

)

)

Defendant.

)

CVCOMPLAINT

NATURE OF ACTION 1. This action challenges the determination by Defendant U.S. FISH AND WILDLIFE SERVICE (Service) not to list the Greater Sage Grouse (Centrocercus urophasianus) under the federal Endangered Species Act (ESA), even though the species is deeply imperiled in Idaho and other western states and warrants ESA protection to prevent it from slipping further toward extinction.

2. Specifically, Plaintiff WESTERN WATERSHEDS PROJECT seeks judicial COMPLAINT -- 1

Case 4:06-cv-00277-BLW Document 1 Filed 07/14/06 Page 2 of 15
review and reversal of the January 2005 determination by the Service that ESA listing of the Greater Sage Grouse is “not warranted.” See 70 Fed. Reg. 2248 (Jan. 12, 2005).
3. The Service’s “not warranted” must be reversed and remanded under the APA and ESA as being arbitrary, capricious, and contrary to the requirements of the ESA in numerous respects, including because the Service violated the ESA’s statutory definitions for determining whether species are endangered or threatened; and made unfounded assumptions about the current status of existing protection measures and the severity of threats facing the species, which are contradicted by the record.
4. As a result of the Service’s unlawful “not warranted” determination, the Greater Sage Grouse lacks protection under the ESA, and remains vulnerable to continued population and habitat declines, across Idaho and other states. Accordingly, the “not warranted” determination must be reversed and set aside by the Court, with instructions that the Service must proceed with the ESA listing process for the Greater Sage Grouse.
JURISDICTION AND VENUE 5. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 (federal question) because this action arises under the laws of the United States, including the Endangered Species Act, 16 U.S.C. §§ 1531 et seq.; the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.; and the Equal Access to Justice Act, 28 U.S.C. § 2412 et seq. An actual, justiciable controversy now exists between Plaintiff and Defendants, and the requested relief is therefore proper under 28 U.S.C. §§ 2201-2202 and 5 U.S.C. § 701-06. 6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Plaintiff resides in this district; and a significant portion of the events or omissions giving rise to the
COMPLAINT -- 2

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claims herein occurred within this judicial district. 7. The federal government has waived sovereign immunity in this action pursuant to
5 U.S.C. § 701. PARTIES
8. Plaintiff WESTERN WATERSHEDS PROJECT (“Western Watersheds”) is an Idaho non-profit conservation group, headquartered at its Greenfire Preserve located on the East Fork Salmon River, near Clayton in Custer County, Idaho.
9. The Greenfire Preserve is a former cattle ranch, which Western Watersheds owns (through a subsidiary) and manages to promote the restoration of native habitats and protection of wildlife species there; to educate the public about native habitat restoration, wildlife protection, and other environmental issues; and to carry out science-based advocacy in the region.
10. Western Watersheds has over 1400 members plus additional volunteers and supporters, located in Idaho and around the United States; as well as professional staff in Idaho, Utah, and Wyoming.
11. Through the efforts of its staff, members, and supporters, Western Watersheds advocates science-based management of public lands in Idaho and other western states, with a focus on the sagebrush-steppe ecosystem, which forms the sole habitat of the Greater Sage Grouse.
12. The decline of the Greater Sage Grouse, in Idaho and other states, is of great concern to Western Watersheds’ staff, members and supporters; and the preservation and recovery of Greater Sage Grouse, and its sagebrush-steppe habitat, are highly important to Western Watersheds and its staff, members and supporters.
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13. Members, supporters, and staff of Western Watersheds work, live and/or recreate throughout the sagebrush-steppe ecosystem of Idaho and surrounding states, which are currently occupied by Greater Sage Grouse. Plaintiff’s members, supporters, and staff derive aesthetic, recreational, scientific, inspirational, educational, and other benefits from this ecosystem on a regular and continuing basis and intend to do so frequently in the immediate future.
14. Western Watershed’s members, supporters, and staff observe and study the Greater Sage Grouse and the sagebrush-steppe ecosystem; and derive recreational, aesthetic, scientific, inspirational, educational, and other benefits from these activities and have an interest in preserving the possibility of such activities in the future. An integral aspect of such use and enjoyment of the Greater Sage Grouse is the expectation and knowledge that species is in its native habitat. For this reason, such use and enjoyment of the Greater Sage Grouse is entirely dependent on its continued existence in the wild.
15. Many of Western Watersheds’ activities – including research and advocacy – have focused on preserving the remaining habitats of Greater Sage Grouse in Idaho and other states, and in restoring those habitats to protect and recover Greater Sage Grouse populations. As just one example of these activities, Western Watersheds has previously brought or joined many cases before this Court in order to protect Greater Sage Grouse and its sagebrush-steppe habitat. Just a few of these cases include:
A. Western Watersheds Project v. Bennett, CV-04-181-S-BLW (D. Idaho) (litigation to protect sage grouse from grazing increases in Jarbidge Resource Area);
B. Idaho Wildlife Federation, Western Watersheds Project, and National Wildlife Federation v. Tower, CV-04-372-E-BLW (D. Idaho) (challenge to Curlew National Grasslands management plan, for failure to protect sage grouse);
COMPLAINT -- 4

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C. Idaho Conservation League and Western Watersheds Project v. Steele, No. 01-CV529-E-BLW (D. Idaho) (challenge to Pleasantview allotment grazing management, which harms sage grouse and other species);
D. Committee for the High Desert and Western Watersheds Project v. Collinge, CV-02172-S-BLW (D. Idaho) (litigation over proposed “sage grouse predators” study which violated NEPA).
16. The above-described aesthetic, conservational, recreational, educational, and wildlife preservation interests of Plaintiff and its members, supporters, and staff have been, are being, and, unless the relief prayed for herein is granted, will continue to be adversely and irreparably injured by Defendant’s violations of law and failure to list the Greater Sage Grouse as threatened or endangered under the ESA. These are actual, concrete injuries to Plaintiff and its members, supporters, and staff, caused by Defendant’s violations of law complained of herein. The relief sought herein would redress these injuries. Plaintiff has no adequate remedy at law.
17. Defendant UNITED STATES FISH AND WILDLIFE SERVICE (“Service”) is an agency or instrumentality of the United States within the federal Department of Interior; and is the federal agency to which the Secretary of the Interior has delegated the responsibility of implementing the ESA and its regulations with respect to the listing of terrestrial species, including the Greater Sage Grouse.
STATEMENT OF FACTS The Greater Sage Grouse. 19. The Greater Sage Grouse (Centrocercus urophasianus) is a unique species of grouse only found in sagebrush-dominated habitats of western North America, including much of central, eastern, and southern Idaho. This species is the largest upland gamebird (excluding the turkey) in
COMPLAINT -- 5

Case 4:06-cv-00277-BLW Document 1 Filed 07/14/06 Page 6 of 15
North America; and the second largest grouse in the world. 20. Greater Sage Grouse were once widely distributed across the western U.S and
Canada, numbering perhaps in the millions. Huge flocks of sage grouse were reported to “blacken the sky” as recently as the late 1800s.
21. Sage Grouse typically inhabit large interconnected expanses of sagebrush, and thus are characterized as a landscape-scale species. Historically, the distribution of Greater Sage Grouse was closely tied to the distribution of the sagebrush ecosystem, and Greater Sage Grouse once occupied parts of 13 states within the western United States and 3 Canadian provinces, including the states of Arizona, California, Colorado, Idaho, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming; as well as the Canadian Provinces of Alberta, British Columbia and Saskatchewan.
22. Populations of Greater Sage Grouse have been extirpated in places throughout their former range, concomitant with habitat loss and degradation. Causes for habitat loss, fragmentation, and degradation in sagebrush include livestock grazing and management, energy development, urbanization, and the infrastructure necessary to maintain these activities, brush control and other means to remove sagebrush.
23. Livestock grazing is known to adversely affect sage grouse populations and habitat. Grazing can lead to long-term changes in plant communities and can reduce certain habitat components, such as biological crusts, which contribute to the health of sagebrush habitat. Grazing can also reduce the residual grass height needed for successful sage grouse nesting.
24. Increased fire frequency in lower elevation sagebrush habitats, often closely tied to invasion of annual grasses such as cheatgrass, has also resulted in losses of sagebrush over
COMPLAINT -- 6

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large expanses in Idaho, and other parts of the Intermountain West. In addition, decreased fire frequency in higher elevation sagebrush habitats and impacts from livestock grazing and other factors have resulted in conifer encroachment and subsequent reduction of the herbaceous understory and sagebrush canopy cover over large areas.
25. Habitat fragmentation resulting from oil and gas development, and associated infrastructure (e.g., powerlines, compressor stations roads, fences, etc.) is also a significant factor contributing to the ongoing degradation of the sage-steppe community. Fragmentation of sage-steppe habitat is also a primary cause of the decline in sage grouse populations, especially because Greater Sage Grouse requires large expanses of contiguous sagebrush.
26. The abundance and distribution of Greater Sage Grouse have declined significantly across North America, and the numbers of male sage grouse counted on leks have declined significantly between 1965 and 2003.
27. Trend data from the mid 1940s to 2003 demonstrates a significant decline in the overall sage-grouse population in North America.
28. The current population of sage grouse is only a fraction of historic levels, and represents less than 10% of historic population levels – i.e., sage grouse populations have experienced a 90% decline in population.
29. Confronted with the population estimates, the Service’s own expert acknowledged the “consistent decline in sage grouse in all states . . . [like] an F-16 fighter going down.”
30. Sage grouse have been extirpated in Nebraska, Arizona, New Mexico, and significant parts of Oregon, Washington, North and South Dakota, and central eastern California. Further, the Service has acknowledged that long-term existence of sage grouse is “uncertain” in
COMPLAINT -- 7

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six of the remaining states where it remains. In these remaining states, sage grouse populations are fragmented, and the Oregon Department of Fish and Wildlife concluded that “the species is depleted throughout most of its range.”
31. Across Canada, sage grouse have been extirpated from British Columbia, and its future is “uncertain” in the remaining two provinces. A leading sage grouse expert, Dr. Clait Braun, has concluded – based on the fragmentation of the habitat and vast reduction in current populations – that sage grouse have “no hope” of persisting in either Alberta or Saskatchewan.
32. Dr. Braun has also concluded that “all studied populations of sage grouse have been in decline for at least 40-50 years,” and that sage grouse experts are unaware of any “sage grouse range expansion anywhere, ever.”
33. Further, a sage grouse biologist with the Idaho Department of Fish and Game has concluded that, “[t]here are no areas over the range of sage grouse that have shown a population increase or even stable population over the last 30 years.”
34. A sage grouse expert has recently concluded that sage grouse are undergoing a “range collapse” – i.e., a “rapid contraction[] of [a] once widespread species to one or a small number of isolated sites.”
34. In addition to the acknowledged population crash of sage grouse population and range, the proportion of small leks has increased over the past 40 years for most states and provinces, while the proportion of large leks has decreased. Small leks are more susceptible to localized extirpation, due to loss of genetic variation, threats of catastrophic fire, and demographic and environmental stochasticity.
35. Sage grouse have a relatively low reproductive rate and their ability to recover from population reductions is low, due to low fecundity rate, low adult survivorship, and very
COMPLAINT -- 8

Case 4:06-cv-00277-BLW Document 1 Filed 07/14/06 Page 9 of 15
low productivity. An expert with the Idaho Department of Fish and Game has acknowledged that “populations that have thus far survived extensive habitat lost may still face extinction because of a time lag between habitat loss and ultimate population collapse.”
Greater Sage Grouse in Idaho 36. Sage grouse populations and habitat in Idaho have experienced the same downward trends as across the remainder of the range. For example, a leading sage grouse researcher has concluded that sage grouse breeding populations in Idaho have declined recently by 40%; and another leading researcher concluded that the recent decline in sage grouse numbers across Idaho is even greater than that. 37. A recent study attempted to quantify the crash of sage grouse populations and range across Idaho, and concluded that current sage grouse populations across Idaho are far below historic levels in every category examined, including: (1) proportion of active leks decreased between 1975 and 2003 by nearly 20%; (2) average and median male sage grouse per lek decreased by nearly 60% in the same timeframe; (3) average and median male sage grouse per active lek declined by over 40%; and (4) the number of sage grouse per lek also decreased significantly. 38. The annual rates of change of sage grouse populations demonstrate a long-term decline for sage-grouse in Idaho, and, perhaps most importantly, populations in the late 1960s and early 1970s were approximately 2 to 3 times higher than current populations. 39. Across Idaho, since the early 1980s, the proportion of small leks increased, and the proportion of large leks decreased. From the late 1960s to the late 1970s, approximately 25% to 35% of the leks censused contained more than 50 sage grouse, and from 1995 to 2003, less than 15% of the leks censused contained 50 or more males. In fact, the average number of
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sage males at a lek from 2000-2003 numbered only 20 grouse. 40. Dr. Clait Braun has concluded that if spring sage grouse lek counts falls below
approximately 50 to 100 birds, then the population in unrecoverable and headed for imminent extirpation.
41. In the Jarbidge Resource Area of southern Idaho, the sage-steppe community historically offered abundant suitable habitat for sage grouse breeding, nesting, rearing, overwintering and other essential biological functions; and historically numbers of sage grouse were abundant in the area year-round.
42. However, according to the Idaho Department of Fish and Game, sage grouse numbers across the Jarbidge have declined over 85 percent in recent years (from 2465 to 373), and the number of active leks have also declined by 63 percent (from 120 to 44 active leks) in the last 20 to 50 years.
43. The Bureau of Land Management (“BLM”)has attributed this decline to overgrazing of sagebrush habitats, along with wildfires, habitat fragmentation, drought, invasion of exotic plans, and conversion of sagebrush habitat to agriculture. In fact, in the Jarbidge Resource Area alone, BLM has converted literally hundreds of thousands of acres to non-native crested wheatgrass (an exotic species used primarily for livestock forage); and many miles of fences, pipelines, roads, watering troughs, and other infrastructure have been built to facilitate higher livestock numbers. Indeed, BLM’s figures show that monocultures of crested wheatgrass have nearly doubled from 350,000 to 650,000 acres in the Jarbidge between 1987 to 2004 – meaning that these seedings now occupy more than one-third of the public lands within the entire Jarbidge Resource Area.
44. The Curlew National Grassland, a unit of the Caribou-Targhee National Forest
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located in south-central Idaho, consists of 47,000 acres of once abundant, but now rare, sagesteppe habitat. The Curlew is home to the imperiled Greater Sage Grouse, and the Forest Service designated Greater Sage Grouse a species of concern on the Curlew.
45. Since 1965, the long-term trend for Greater sage grouse populations on the Curlew demonstrate alarming population declines. Recent information indicates that the Greater sage grouse population declines are continuing – and even accelerating – across the Curlew. For example, monitoring of the 24 known leks between 1999 and 2002 demonstrated a consistent decline in both the number of total males counted (declining from 265 to 126), as well as the number of active leks (declining from 24 to 10). In 2000, the total number of male sage grouse counted at 11 core leks was 101 males, and by 2002, on 67 males were counted on these leks.
46. As in the Jarbidge, the decline in Greater Sage Grouse populations across the Curlew can be correlated with the degradation and destruction of sage grouse habitat. In the Curlew, the ongoing and persistent habitat destruction is tied to excessive grazing and associated infrastructure, as well as efforts by the Forest Service to increase forage capacity through prescribed burns, reseeding with non-native crested wheatgrass and other forage-based exotics, herbicide and pesticide application designed to increase the forage base, and the rapid expansion of Cheatgrass (bromus tectorum). Additionally, most riparian areas across the Curlew are in poor or non-functioning condition, the same riparian areas that are critical to sage grouse chick rearing and survival.
ESA Listing History and Related Developments 47. On December 29, 2003, Western Watersheds Project and others submitted to the Service a “Status Review and Petition to List the Greater Sage Grouse as Threatened or Endangered Under the Endangered Species Act” (hereafter “Plaintiff’s Listing Petition”). Plaintiff’s Listing
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Petition presented extensive scientific evidence amply demonstrating that Greater Sage Grouse is in danger of extinction throughout all or a significant portion of its range.
48. Plaintiff’s Listing Petition included citations to over one hundred peer-reviewed scientific publications supporting the need to protect the Greater Sage Grouse as a threatened or endangered species.
49. On April 21, 2004, the Service issued its 90-Day Finding pursuant to Section 4(b)(3)(A) of the ESA. In its 90-Day Finding, the Service concluded that Plaintiff’s Listing Petition presented substantial information indicating that listing the Greater Sage Grouse under the Endangered Species Act may be warranted. See 69 Fed. Reg. 21484.
50. On January 12, 2005, the Service issued its 12-Month Finding on Plaintiff’s Listing Petition, determining that listing the Greater Sage Grouse under the ESA was “not warranted.” 70 Fed. Reg. 2248 (Jan. 12, 2005). The “not warranted” determination acknowledged the threats to sage grouse and its habitat are “real,” but asserted that the prospective impact of these threats is uncertain. Based on this uncertainly, the Service claimed that “there were reasons to be encouraged by current assessments of grouse population status, trends and distribution.”
51. This conclusion flies in the face of the 2004 Western Association of Fish and Wildlife Association’s Sage Grouse Conservation Assessment – which the Service admitted was the most up-to-date scientific information on the status of the Greater sage grouse populations and habitat. That WAFWA Conservation Assessment concluded that “long-term population changes coupled with continued loss and degradation of habitat and other factors (including West Nile Virus) do not provide causes for optimism.”
52. Further, the Service concluded that protecting Greater Sage Grouse as threatened or
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endangered under the ESA was “not warranted” because sage grouse was not likely to become extinct in the foreseeable future, in ways which misapply the standards for endangered and threatened species under the ESA and are contrary to the Service’s own past policies and the best available scientific information.
53. The “not warranted” determination further violated the ESA’s requirements for assessing whether species should be listed as endangered or threatened by failing to consider whether Greater Sage Grouse is threatened or endangered over a significant portion of its range.
54. The “not warranted” determination further violated the ESA’s definitions and standards, and its “best available science” requirement, by relying on voluntary and unproven conservation measures; wrongly assuming that adequate conservation efforts are underway; misstating the rate and extent of sage grouse habitat degradation; and other factual and legal errors, which render the “not warranted” determination arbitrary, capricious, and contrary to law under the ESA and APA.
55. As a result of the Service’s violations of law, Greater Sage Grouse remains unprotected under the ESA, even though it faces imminent further declines and possible extinction and warrants protection under the ESA. Western Watersheds has been harmed by the Service’s unlawful refusal to protect the grouse under the ESA. Accordingly, Western Watersheds prays for judicial relief as set forth below.
CLAIM FOR RELIEF 56. Plaintiff realleges and incorporates by reference the allegations of all preceding paragraphs. 57. The Service’s “not warranted” determination declining to list the Greater Sage Grouse as threatened or endangered is a final agency action which is subject to judicial review
COMPLAINT -- 13

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by this Court under the Administrative Procedure Act, 5 U.S.C. § 706; and which must be

reversed and remanded as being arbitrary, capricious, an abuse of discretion, and/or contrary to

law, including (but not limited to) the following reasons:

a. The Service did not follow the ESA’s statutory definitions of “threatened” and

“endangered,” and, instead, applied novel and legally improper definitions of “threatened” and

“endangered” to further preclude protecting sage grouse;

b. The Service never considered whether Greater Sage Grouse was threatened or

endangered over a significant portion of its range;

c.

The Service relied on incorrect factual assumptions in deciding to forego

protection sage grouse;

d. The Service relied upon unproven and speculative conservation measures to

preclude protecting the Greater Sage Grouse under the ESA; and

e. The Service allowed political considerations to preclude protecting Greater Sage

Grouse under the ESA.

58. For these and other reasons, the Service’s “not warranted” determination for the

Greater Sage Grouse must be reversed and remanded as being arbitrary, capricious, an abuse of

discretion, and/or contrary to the Endangered Species Act.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court grant the following relief:

A. Declare and adjudge that the Service acted unlawfully in issuing the January 2005

“not warranted” determination for the Greater Sage Grouse;

B. Reverse and remand the “not warranted” determination with instructions that the

Service must proceed expeditiously with the ESA listing process for the Greater Sage Grouse;

COMPLAINT -- 14

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C. Grant such other and further relief as may be requested hereafter by Plaintiff, or

as may be deemed appropriate by the Court in order to protect the public interest and the Greater

Sage Grouse; and

D. Award Plaintiff its reasonable litigation costs (including attorney fees and expert

witness fees) incurred in bringing this action, pursuant to EAJA, ESA, and/or other provisions of

law.

Dated this 14th day of July 2006

Respectfully submitted,

_/s/ Laird J. Lucas_________________ Laurence (“Laird”) J. Lucas (ISB #4733)

Attorneys for Plaintiff Western Watersheds Project

COMPLAINT -- 15

 
 Case 4:06-cv-00277-BLW Document 118 Filed 12/04/2007 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

WESTERN WATERSHEDS

)

PROJECT,

)

)

Plaintiff,

)

)

v.

)

)

UNITED STATES FOREST

)

SERVICE,

)

)

Defendant.

)

______________________________ )

Case No. CV-06-277-E-BLW MEMORANDUM DECISION

INTRODUCTION

The Court has before it cross-motions for summary judgment. The Court

has heard oral argument and fully reviewed the extensive Administrative Record.1

For the reasons expressed below, the Court will grant the motion of plaintiff

Western Watersheds Project and deny the other motions.

SUMMARY

Plaintiff WWP seeks review of a decision by the Fish and Wildlife Service

(FWS) rejecting petitions to list the greater sage-grouse under the Endangered

1 The Administrative Record in this case was contained in 8 CDs (including the e-mails). The information on the CDs was not set forth in an easy-to-find format. Consequently, the Court had a very difficult time locating documents. In the future, Government counsel should work together with the agency to ensure that the Administrative Record can be easily accessed.
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Species Act (ESA). Sage-grouse populations have been in significant decline for decades. While the rate of decline has recently slowed, the sage-grouse’s habitat is being subjected to accelerating threats from invasive weeds, fires, energy development, and livestock grazing. About one-half of the original area occupied by the sage-grouse is no longer capable of supporting sage-grouse on a year-round basis. For these reasons, the Bureau of Land Management and the Forest Service have both listed the sage-grouse as a “sensitive species” across its entire range in the United States.
These circumstances prompted various groups to file petitions with the FWS seeking listing of the sage-grouse under the ESA. That law required the FWS to use the “best science” to determine whether the sage-grouse is an endangered or threatened species. The FWS determined that a listing was not warranted.
After reviewing the FWS’s decision, the Court finds three flaws with the FWS decision-making process: (1) While the FWS consulted with experts, the agency excluded them from the listing decision; (2) The FWS created no detailed record of the experts’ opinions; and (3) The FWS ignored that portion of the experts’ opinions that were preserved on the record.
This process violates the statutory requirement that the “best science” be applied. By improperly insulating the decision-makers from scientific input, it
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creates opacity when transparency is required. The Court has serious reservations about whether such a process may be used again in any reevaluation of the sagegrouse or, for that matter, in any other listing decisions in the future.
Furthermore, the FWS decision lacked a coherent analysis of the deterioration of habitat and the regulatory mechanisms designed to protect the sage-grouse. Finally, the FWS decision was tainted by the inexcusable conduct of one of its own executives. Julie MacDonald, a Deputy Assistant Secretary who was neither a scientist nor a sage-grouse expert, had a well-documented history of intervening in the listing process to ensure that the “best science” supported a decision not to list the species. Her tactics included everything from editing scientific conclusions to intimidating FWS staffers. Her extensive involvement in the sage-grouse listing decision process taints the FWS’s decision and requires a reconsideration without her involvement.
ANALYSIS 1. The ESA
Congress enacted the ESA in 1973 “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b). Section 4 of the ESA directs
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the Secretary to determine which species should be listed as endangered or threatened. Id. at § 1533(a)(1). The Secretary has delegated this duty to the FWS.
An endangered species is “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species is one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. at §§ 1532(6), (20). In deciding whether or not a species qualifies as endangered or threatened, the FWS is required to consider the following five factors: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting its continued existence. Id. at § 1533(a)(1).
The Director of the FWS must make listing determinations “solely on the basis of the best scientific and commercial data available to him [or her] after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation . . . to protect such species.” Id. at § 1533(b)(1)(a). A species may be “listed” as endangered or threatened under the ESA in one of two ways, either on the initiative of the Secretary through the “candidate process,” or as a result of a petition submitted by
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an “interested person.” Id. at § 1533(b)(3)(A). In this case it was a series of petitions filed with the FWS that initiated the process.
Once it receives a petition to list a species, the FWS must, within 90 days, determine whether the petition presents “substantial scientific or commercial information indicating that the petitioned action may be warranted.” Id. This is commonly referred to as the “90-day finding.” The ESA’s implementing regulations define “substantial information” as the “amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.” 50 C.F.R. § 424.14(b)(1).
The 90-day finding is based solely on the petition; the FWS does not conduct independent research to confirm the petition’s assertions. See 69 Fed.Reg. at 21485. If the FWS makes a “positive” 90-day finding, it begins a “review of the status of the species concerned” and, within one year of the receipt of the petition, must make a second finding (commonly referred to as the “12-month finding”) that either: (a) the petitioned action is not warranted; (b) the petitioned action is warranted; or (c) the petitioned action is warranted but precluded by higher priority pending proposals and expeditious progress is being made to list, delist, or reclassify. See 16 U.S.C. § 1533(b)(3)(B); 50 C.F.R. § 424.14. 2. Sage-Grouse 90-Day Finding
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Between 2002 and 2003, the FWS received three petitions to list the greater sage-grouse (Centrocercus Urophasianus) as an endangered species under the Endangered Species Act (ESA). On April 21, 2004, the FWS filed its 90-day finding, concluded that the petitions present “substantial information indicating that listing the greater sage-grouse may be warranted.” See 69 Fed. Reg. at 2148494.
The FWS’s analysis began with a description of sage-grouse, their habitat, and their current status. The greater sage-grouse is the largest species of grouse in North America. Id. at p. 21485. It was described in the journal entry of Meriwether Lewis for June 5, 1805, while he was in the territory that would become Montana. See Conservation Assessment at p. 3-1. At that time, there may have been 1.1 million of the birds ranging over an area now comprising 16 western states and 3 Canadian provinces. 69 Fed. Reg. at 21486. Today, population estimates range from 100,000 to 500,000, and the range has been reduced to 11 western states and 2 Canadian provinces. Id. Their population numbers “may have declined between 69 and 99 percent from historic to recent times.” Id.
The “primary explanation” given by the FWS for this population decline was “[h]abitat alteration, through loss and degradation . . . .” Id. at p. 21490. Sagegrouse habitat is tied to several species of sagebrush. Throughout much of the year
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adult sage-grouse rely on sagebrush to provide roosting cover and food. During the winter they depend almost exclusively on sagebrush for food. 69 Fed. Reg. at p. 21486.
The habitat loss was “due in large part to human actions rather than natural events.” Id. at 21492. The FWS identified a number of causes for this habitat loss, including (1) agriculture (“millions of hectares of native sagebrush habitat have been cultivated for [agricultural] production”), (2) herbicides (“[c]hemical control of sagebrush has resulted in major declines of sage-grouse breeding populations through the loss of sagebrush cover”), (3) grazing (“grazing by livestock could reduce breeding habitat”), (4) fire (“[w]ildfires have destroyed extensive areas of sagebrush habitat in recent years,” and these fires allowed invasion of cheatgrass, “an exotic species that is unsuitable as sage-grouse habitat”), and (5) development (“sage-grouse habitats also are fragmented by fences, powerlines, roads and other facilities associated with grazing, energy development, urban/suburban development [etc.] . . . .”). Id. at 21488-90.
The FWS also expressed concern that federal and state agencies had no plans in place to protect habitat. For example, the FWS concluded that it “is not aware of any State regulations that conserve greater sage-grouse habitat or encourage habitat conservation efforts on private lands.” Id. at 21492. The FWS also found
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that although a large portion of habitat occurs on BLM lands – and the BLM has designated the sage-grouse as a special status species in 5 of 11 states – there were no regulations requiring that BLM land use plans specifically address the conservation needs of special status species. Id. With regard to habitat on lands managed by other federal agencies, the FWS concluded that with the exception of one program, “we are unaware of any other agency efforts to protect and conserve sage-grouse on these Federal lands.” Id.
The FWS observed that sage-grouse were susceptible to the West Nile Virus, which was spreading into the birds’ range, and “warrants further investigation.” Id. at p. 21491. In conclusion, the FWS found that although the petitions contained “minor errors,” they did “contain accurate information, which we have confirmed through our review of the scientific, peer-reviewed literature and direct communications with species experts.” Id. at p. 21494. The FWS found that there was substantial information in the petitions to indicate that listing of the greater sage-grouse may be warranted. That finding was based “primarily on the historic and current destruction, modification, or curtailment of greater sage-grouse habitat or range, and the inadequacy of existing regulatory mechanisms in protecting greater sage-grouse habitats throughout the species’ range.” Id. 3. Conservation Assessment
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About two months after the FWS found that listing may be warranted, and was seeking public comments, a report called the Conservation Assessment (CA) was issued by a group of State agency wildlife biologists who were experts on the sage-grouse. The CA was peer-reviewed by an independent group of scientists selected by the Ecological Society of America. See 70 Fed. Reg. at p. 2249.
The CA analyzed sage-grouse population trends from 1965 to 2003, first for states and then range-wide. The state-wide assessment showed that (1) 11 of 13 states and provinces showed “significant long-term declines in size of active leks”; (2) 8 of 10 states showed “population declines over the same time frame”; and (3) 2 of 10 states “appeared to be stable or slightly increasing.” Conservation Assessment at p. ES-4. Only California had an increase in both the population index and lek size. Id.
The range-wide assessment showed that “[s]age-grouse populations declined at an overall rate of 2.0% per year from 1965 to 2003.” Id. at ES-5. The population drop was more pronounced from 1965 to 1985, a decline of 3.5%. Id. From 1986 to 2003, the population declined at a lower rate of .4%. Id. Despite the lower rate of decline, the CA concluded that “we are not optimistic about the future of sage-grouse because of long-term population declines coupled with continued loss and degradation of habitat and other factors (including West Nile Virus). Id.
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The CA discussed in detail the continued loss of habitat. For example, it observed that a non-native annual grass known as cheatgrass was spreading rapidly and “replacing sagebrush.” Id. at 7-14. With regard to the Great Basin, “[n]early 80% of the land area . . . is susceptible to displacement by cheatgrass.” Id. at p. 717. The “increased flammability” of cheatgrass causes “increased fire intensity and frequency.” Id. at 7-14. Both the number of fires and the total area burned have increased dramatically in the last decade when compared with the past 100 years. Id. at 7-70 (Fig. 7.1). The CA warned that periods of drought and global climate change could further facilitate cheatgrass invasion or exacerbate the fire regime, and thus “accelerate the loss of sagebrush habitats.” Id. at p. 7-18. The long-term result is that “the increased areas burned each year coupled with decreased total area of sagebrush habitats can further accelerate the trajectory of habitat loss for sage-grouse.” Id. at p. 7-7.
Additional long-term problems were expected to be caused by increased oil and gas development. Existing development “influenced 28% of the sagebrush habitats within the [Assessment] study area,” and caused a “direct loss of habitat.” Id. at 7-40, 7-42. Increases in demand for oil and gas have led to increased demand for drilling permits. For example, in the Powder River Basin (extending through sage-grouse range in Montana and Wyoming), while 15,811 wells have
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been approved, an additional 65,635 “are being considered . . . .” Id. at 7-42; Fig. 7-30. This was no isolated instance: “[T]he [BLM] anticipates receiving large numbers of applications for permits to drill.” Id. at 13-7. The CA noted that because 96% of all drilling permit applications are approved, “the frequency and extent of oil and gas development on sagebrush ecosystems are likely to increase . . . .” Id.
In summary, “the western landscape has been subjected to a new suite of intense, frequent, or continuous disturbances.” Id. at p. 13-6. It is the “cumulative impacts of the disturbances, rather than any single source, [that] may be the most significant influence on the trajectory of sagebrush ecosystems.” Id. at p. 13-8. And that “trajectory,” in the opinion of the experts who drafted the Assessment, is headed in a negative direction: “[W]e are not optimistic about the future of sagegrouse because of long-term population declines coupled with continued loss and degradation of habitat and other factors (including West Nile Virus).” Id. at p. ES5. 4. 12-Month Finding Process – PECE
To begin the process of drafting its 12-month finding, the FWS began by evaluating information on individual planned conservation efforts. Their evaluation was conducted under the FWS’s Policy for Evaluation of Conservation
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Efforts When Making Listing Decisions (“PECE”). See 68 Fed. Reg. 15100, 15115 (Mar. 28, 2003). Recognizing that conservation efforts might vary in effectiveness, PECE dictates that “conservation efforts that are not sufficiently certain to be implemented and effective cannot contribute to a determination that listing is unnecessary or a determination to list as threatened rather than endangered.” Id. at 15115. Evaluating over 300 plans from state and federal agencies, among others, the FWS determined that 20 of them met PECE standards and should be included in the information used for the extinction risk evaluation. See 70 Fed. Reg. at 2251. 5. 12-Month Finding Process – Expert Panel
The FWS then moved to the risk analysis stage, where the FWS considered “how great a danger the greater sage grouse faces of becoming extinct.” See GSG Emails 13378. To identify this danger, the FWS convened a panel of seven outside scientists with expertise in sage-grouse biology and ecology, sagebrush community ecology, and range ecology and management. See 70 Fed.Reg. at 2249-51; AR at pp. 11072-11168 (setting forth qualifications of each of the expert panelists).
Over the course of two days, the panel of experts discussed the threats to sage-grouse across its range. Id at 2279. The FWS purposefully did not ask the expert panel to consider or discuss WWP’s petition or whether, as a matter of
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regulatory policy, the sage-grouse should be listed as endangered or threatened. Id. Instead, the panel was asked when the sage-grouse would become extinct. Id. at 10930.
The expert panel did not issue any written report. Instead, they discussed extinction risks in the presence of a management team that would make the ultimate listing decision. In addition, each expert panelist (1) ranked the threats to the sage-grouse, and (2) voted on “how far in the future you anticipate that greater sage-grouse will become extinct.” The votes and rankings are part of the Administrative Record, but there is no written analysis from any member of the expert panel explaining either the votes or rankings.
With regard to the threat rankings, the expert panelists found that the top range-wide threats to the sage-grouse were, in order, (1) invasive species, (2) infrastructure, (3) wildfire, (4) agriculture, (5) grazing, (6) energy development, (7) urbanization, (8) strip/coal mining, (9) weather, and (10) pinyon-juniper expansion (followed by eight other threats). Id. at 2280; AR at p. 10921. In the eastern portion of the sage grouse’s range, the top two threats were energy development and infrastructure, while in the west, the top two threats were invasive species and wildfire. See AR at pp. 10922-10923.
Each expert panelist was then given 100 points, and asked to assign them
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over seven time intervals representing the likelihood that the greater sage-grouse would become extinct in that time-frame (1-20 years, 21-40, 41-60, 61-80, 81-100, 101-200 and 200+ years). See AR at pp. 10930-10950. The experts were asked to conduct three scorings for each geographical region.
The first scoring was done after the FWS’s presentations on the life history, intrinsic and extrinsic factors, and population trends of sage-grouse. See GSG Emails 13378-13385. The second scoring was conducted after the expert panel had reviewed the individual first scores (anonymously) and engaged in a facilitated discussion of the results. See GSG Emails 13380-13381. The purpose of having a second scoring was to provide each of the experts the opportunity to change his/her answer following the discussion of the first risk projection amongst his/her peers and to make sure that each expert had “understood the question and scored correctly.” See AR 10930-10950; GSG Emails 13380-13381.
In the second vote, panelists cast 250 votes for extinction within 100 years, and 450 votes for extinction at various intervals after 100 years. Thus, 36% of the votes cast were for extinction within 100 years. Three of the seven panelists cast the majority of their votes for extinction within 100 years.
Following the second scoring, the expert panel heard a FWS presentation on PECE projects. See AR at p. 13381. After the presentation, the experts were asked
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if they wished to revise their extinction risk estimates. See AR at pp. 3381-13382. Only one panelist opted to change his/her assessment in the third scoring. See AR at pp. 10957-10963. Thus, after the third round of voting, and the PECE presentation, only two of the seven panelists voted the majority of their votes for extinction within 100 years. Of the 700 votes cast in this third round, 28% were cast in favor of extinction within 100 years. 6. 12-Month Finding Process – Decision Support Team
The FWS did not ask the expert panel to discuss, or express an opinion on, whether the sage-grouse met the definition of “endangered” or “threatened” under the ESA. That decision would ultimately be made by the FWS’s Director, after reviewing a recommendation from a team of FWS managers who observed the discussions of the expert panel. This team – known as the Decision Support Team – consisted of seven senior FWS biologists and managers. Their specific task was to evaluate whether the threats to the sage-grouse met the ESA’s definition of a threatened or endangered species. Id. In determining whether the sage-grouse met the definition of “threatened” – that is, was likely to become extinct within the foreseeable future – the Team chose 100 years as the outer boundary of the “foreseeable future” because it represented ten generations of sage-grouse or two generations of sagebrush.
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The Team used a point system similar to that used by the expert panel. Each member of the Team was given 100 points to be allocated among three possible regulatory actions on WWP’s petition: not warranted, threatened, or endangered. As with the expert panel, the Team was given the opportunity to conduct a second assessment following discussion of the initial assessment. The Team’s point allocations were based on consideration of the background materials compiled, the two-day discussions of the expert panelists, and the Team’s own discussions about the application of the ESA’s definitions of the threatened and endangered categories. 70 Fed. Reg. at 2280.
In the second scoring, 520 points were cast for a “not warranted” finding while 180 points were cast for a “threatened” finding. No points were cast for a “endangered” finding. Five of the seven Team members “believed that the sagegrouse would not face extinction for at least 100 years.” Id.
According to the Director’s 12-Month Finding, the Team recommended a “not warranted” finding. There is no recommendation from the Team as a whole in the Administrative Record. Apparently, however, the Director met with the Team on November 9, 2004, and received their verbal “recommendation.” GSG E-Mail 4657. Pat Deibert, a FWS biologist who prepared the 12-Month Finding, states in an e-mail that “[t]he Director seemed impressed with the work done, and accepted
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the recommendation of the [Team].” Id. Each member of the Team also provided hand-written comments explaining
their votes. For example, one Team member who cast 80 votes for “Not Warranted” and 20 votes for “Threatened,” wrote that “[s]pecies is not at threat of imminent extinction due to wide distribution, relative stability of core population areas, and rate of impact of the threats.” AR at 11039 (emphasis in original). After making other comments, this member concluded that “species doesn’t meet statutory definition of [Threatened] or [Endangered] at this time.” Id. at 11040.
The Director apparently used these hand-written comments – and his inperson meeting with the Team – to discern their analysis and conclusions. According to the Director, the Team concluded that while there are real threats to sage-grouse, two factors counseled against finding that a listing is warranted: (1) the population is now stable; and (2) there is great uncertainty about the habitat threats.
With regard to population numbers, the Director summarized the Team consensus as follows:
It is clear that the number of greater sage-grouse range-wide has declined from historically high levels, with well documented declines between 1960 and 1985. However, the most recent data reflect that overall declines have slowed, stabilized or populations have increased. These data and the fact that 92% of the known active leks occur in 10 core populations across 8 western states, and that 5 of these populations were
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so large and expansive that they were subdivided into 24 sub-populations . . . was cited by managers on the [Team] as part of the reason for their not warranted recommendation.
Id. at 2281. With regard to the uncertainty over the effects of various threats, the
Director summarized the Team consensus as follows:
The higher ranking threats, while range-wide and regional in scale, are to a large degree prospective in nature (e.g., invasive species, infrastructure, wildfire, oil and gas development and conifer invasion). Neither the [Team] nor the expert panelists could predict how these threats will develop over time or interact with each other or with different less important threats to accelerate habitat loss or other impacts to the grouse. This uncertainty was explicitly noted by several of the [Team] biologists and managers as part of the reason for a not-warranted recommendation.
Id. The final recommendation of the Team was forwarded to the Director and
summarized by him as follows:
[B]ecause of the relatively long projected risk of extinction, in many cases greater than 200 years . . . combined with considering the variety of sources of information generated for and during the risk analysis phase, including the expert panel deliberations and the Conservation Assessment . . . the [Team] found that the levels of these existing threats, although very real, when considered against the status, trends, and distribution of the current population, were not sufficient to result in the greater sage-grouse becoming an endangered species in the next 40 to 100 years.
7. 12-Month Finding
On January 6, 2005, the then Director of the FWS, Steven Williams,
adopting the Team’s recommendations set forth above, decided that a listing was
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not warranted, “after considering the compiled information, the risk assessment [by the expert panel], the applicable conservation actions, and the assessment of the [Team].” Id. at 2282.
ANALYSIS 1. Standard of Review
Because the ESA has no specific provision for judicial review of final agency actions, the scope of review is governed by the APA, 5 U.S.C. § 701 et. seq. Under the APA, an agency action must be upheld unless it is found to be arbitrary or capricious. 5 U.S.C. § 706(2)(A). To decide if an agency action is arbitrary and capricious, the court must determine whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made. Pacific Coast Federation of Fishermen's Ass'n, Inc. v. NMFS, 265 F.3d 1028, 1034 (9th Cir.2001). The agency’s decision need not be a model of clarity so long as “the agency’s path may reasonably be discerned.” National Ass’n of Home Builders v. Defenders of Wildlife, 127 S.Ct. 2518 (2007)
“Deference to an agency's technical expertise and experience is particularly warranted with respect to questions involving . . . scientific matters.” United States v. Alpine Land and Reservoir Co., 887 F.2d 207, 213 (9th Cir.1989). Nevertheless, the “presumption of agency expertise may be rebutted if the decisions, even though
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based on scientific expertise, are not reasoned.” Greenpeace v. NMFS, 80 F.Supp.2d 1137, 1147 (W.D.Wash.2000).
Judicial review under this standard is to be “searching and careful,” but remains “narrow,” and a court should not substitute its judgment for that of the agency. Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir.1993). 2. Jurisdiction
The FWS alleges that WWP failed to give the 60-day notice required by the ESA before bringing suit. See 16 U.S.C. § 1540(g)(2)(c). This requirement is jurisdictional, Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988).
WWP does not need to comply with the ESA notice provisions for an APA claim challenging the FWS’s failure to perform a discretionary duty under the ESA. See Bennett v. Spear, 520 U.S. 154, 176-178 (1997). The FWS describes its listing decision as discretionary. See FWS Brief at p. 24 (stating that “the [FWS] exercised its expert discretion and determined that listing greater sage-grouse was not warranted”). That decision – like all ESA listing decisions – will be reviewed under the APA’s arbitrary and capricious standard. See Center for Biological Diversity v. Badgley, 335 F.3d 1097, 1100 (9th Cir. 2003). Because this suit is brought under the APA, to review a discretionary decision of the FWS, Bennett
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dictates that the ESA notice requirement does not apply.2 The FWS also challenges WWP’s standing. However, WWP was one of the
petitioning parties before the FWS, and also submitted numerous public comments. This is sufficient to confer standing. See Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995). 3. Best Science
The FWS is required to base its listing decision “solely on the basis of the best scientific and commercial data available . . . .” 16 U.S.C. §1533(b)(1)(a). Of the three entities that played a role in the FWS’s listing process – expert panel, Decision Support Team, and Director – it was the expert panel that had the extensive knowledge of the sage grouse and its habitat. Accordingly, the “best science” was represented by the expert panel.
What does the record reveal about the “best science” coming out of the expert panel? The panel prepared no written report, and the FWS made no transcript of their two days of verbal discussions. We do have their vote totals, specifically the results of the second round of voting. If you count heads, three of the seven experts concluded that the sage grouse would be extinct within 100
2 WWP’s counsel stipulated at oral argument that he would not seek attorney fees under the ESA. Memorandum Decision – Page 21

Case 4:06-cv-00277-BLW Document 118 Filed 12/04/2007 Page 22 of 35
years. If you count votes, the probability that the sage grouse will be extinct in 100 years is, after the second round of voting, (1) 36% range-wide; (2) 52% in the eastern portion of their range; and (3) 40% in the western portion of their range.
None of this voting analysis was discussed in the 12-Month Finding. The Director completely ignored the second-round percentage figures, and counted heads inaccurately: He concluded that only two of the seven experts voted for extinction. See 70 Fed. Reg. at p. 2280. To get that result, the Director had to rely on the third round of voting, where one expert changed his/her vote after hearing a presentation on conservation efforts that met the PECE criteria. However, earlier in his decision, the Director stated that he had not “evaluate[d] whether the planned conservation efforts that met PECE reduced the threats to the species.” Id. at 2245. If the Director failed to evaluate those conservation efforts, he cannot rely on a vote tally that appears so clearly to depend on those efforts. See generally, Federation of Fly Fishers v. Daley, 131 F.Supp. 2d 1158 (N.D.Cal. 2000)(holding that in making listing decision, agency cannot rely on unproven conservation measures).
With regard to the percentage figures, they were not evaluated either by the Director in his 12-Month Finding, see 70 Fed.Reg. 2244 et. seq.,or by the Decision Support Team, see AR at 11031 to 11043. Was that failure arbitrary and
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capricious? To be a “threatened” species under the ESA, the sage-grouse must be “likely” to “be in danger of extinction” within 100 years. Here, the FWS defined “likely” as meaning “more likely than not,” which is a probability of 50% or greater. See AR at 9059.3 The phrase “in danger of” was defined to “imply a risk sufficiently high to warrant immediate action.” Id. at 9058.
Putting all these terms together, the sage grouse is threatened if there is at least a 50% probability that it will be “in danger of” extinction within 100 years. The experts here found that range-wide, there is a 36% chance that the sage grouse will be extinct in 100 years, not merely that it will be in danger of extinction. Is that akin to a 50% chance that it will be in danger of extinction? It certainly is close enough to warrant a full discussion.
The need for a full discussion becomes even more compelling when considering the east/west figures of 52% and 40% respectively. Once again, those are risk assessments that the sage grouse will be extinct, not merely that it will be in danger of extinction, within 100 years. These figures clearly put the extinction danger close enough to the FWS definitions quoted earlier to merit a full evaluation.
3 One court in this Circuit has approved this definition of “likely.” Trout Unlimited v. Lohn, 2007 WL 2973568 (D.Or. July 13, 2007). This definition has not been challenged here, and thus the Court expresses no opinion on that definition. Memorandum Decision – Page 23

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Because the FWS did not preserve for the record any explanation by the experts of these percentages, the Court is forced to look elsewhere for their significance. In considering whether to list the Queen Charlotte goshawk, the FWS modified criteria set by the International Union for the Conservation of Nature (IUCN) to determine that the goshawk would be “threatened” “if at any point in the next 100 years there is a 20 percent chance that the species would become extinct.” Southwest Center for Biological Diversity v Norton, 2002 WL 1733618 (D.D.C. 2002). The same 20% risk was used by the FWS in deciding whether to list the Alexander Archipelago wolf. AR at 11750. While the FWS is not bound in this case by either the IUCN criteria or the 20% figure used in other cases, these guidelines signal that the even-higher risk assessments here are significant enough to at least warrant discussion.
As mentioned, the record contains no transcript or detailed account of the experts’ two days of discussion in the presence of members of the Decision Support Team. In other words, the FWS failed to adequately preserve for the record the “best science.” This makes it impossible for the Court to review whether the Team and the Director accurately applied the “best science” represented by the expert panel. The Court is forced to rely on their recollections of the experts’ discussions with no way to verify whether those recollections are
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accurate. The consequences of this failure were compounded when the FWS excluded
the experts from the listing determination. It was the Team who would make the recommendation to the Director, but they were not sage grouse experts. In the absence of the experts, it was imperative that the Team recall accurately what the experts had said.
What an odd process. Right at the moment where the “best science” was most needed, it was locked out of the room. The FWS argues that it cannot be compelled to cede control of a listing decision to experts. But the argument misses the mark. By excluding the experts from making even a recommendation, and then failing to document the experts’ discussions (beyond their votes), the FWS cannot demonstrate that is applied the “best science.”
The FWS points out that the Director specifically found that “it was decided by consensus that there was not a significant portion of the range in which threats to sage-grouse are greater than range-wide threats.” See 70 Fed.Reg. at 2281. It is not clear whether the “consensus” was that of the experts, the Team, or both. Whatever the grouping, the “consensus” does not square with the experts’ voting results. While the experts found a 35% range-wide risk of extinction, the risk jumped to 52% in the eastern region. The only way to explain the Director’s
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conclusion that 52% is not greater than 36% is to assume that the eastern region is not a “significant portion of the range.” But that assumption is nowhere explained. The FWS cannot demonstrate that the Director’s account of the “consensus” is accurate.
The FWS used this same flawed process in deciding not to list the slickspot peppergrass. See WWP v. Foss, 2005 WL 2002473 (D.Idaho 2005). There, a court in this District reversed the FWS’s decision, expressing concern that the FWS was asking the court to assume “that FWS’s managers had a special insight into slickspot peppergrass, which its panel of experts did not possess,” and that there was no “means of reviewing its decision.” Id. at *17. While Foss is not directly on point, its deep concerns about the FWS’s decision-making process are shared by this Court.
For all these reasons, the Court cannot find that FWS used the “best science” as required by 16 U.S.C. §1533(b)(1)(a). Accordingly, the Court finds that the FWS 12-Month Finding is arbitrary and capricious under § 706 of the APA. 4. Habitat
The Director’s 12-Month Finding concluded that “[s]ervice biologists determined that the principal habitat-related threats are not proceeding at a rate that will threaten the continued existence of the species within the foreseeable future.”
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See 70 Fed.Reg. at 2267. By “service biologists” the Director is referring to the Decision Support Team. The Administrative Record contains no findings by the Team as a whole on habitat. There are the notes of individual team members and the results of their voting. It appears the Director cobbled these together – along with his off-the-record in-person meeting – to reach his conclusion about the Team’s “determination.”
This process is flawed for a number of reasons. First, the Team was not comprised of experts on sage-grouse habitat – that was the province of the expert panelists and the experts who prepared the Conservation Assessment (CA). What did the expert panelists say specifically about sage-grouse habitat and its “rate” of decline? We don’t know because their discussions were off-the-record.
The Director says that “the majority of the expert panel did not believe that these threats were occurring at such a rate to cause the extinction of the greater sage-grouse within the next 60 to 100 years.” Id. at 2267. Yet we know that three of the experts did so believe, judging from their voting. Why were their views not even discussed?
The experts who compiled the CA certainly had a gloomy outlook for sagegrouse habitat. As discussed above, the CA concluded that habitat threats like invasive weeds, fire, and energy development were all on the increase.
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The Director acknowledged these threats by citing to various examples that confirmed the CA’s analysis: (1) “[w]ildfires have removed extensive areas of sagebrush habitat in recent years,” id. at 2265; (2) “the rapidity of [energy] development and the persistent demand for petroleum products,” is the primary threat in the east region, and the current Administration has taken action to “expedite projects that will increase the production, transmission, or conservation of energy,”id. at 2273; and (3) “cheatgrass has invaded extensive areas in western parts of greater sage-grouse range, supplanting sagebrush plants upon which sagegrouse depend,” id.
Nowhere is sage-grouse habitat described as stable. By all accounts, it is deteriorating, and that deterioration is caused by factors that are on the increase. However, the Director concludes that the “rate” of this deterioration is not fast enough to cause alarm. While that finding has no support in the CA, the Director states that he is relying on determinations made by both the Team and the expert panelists. Id. at 2267. Once again, however, the Team is not comprised of habitat experts; the “best science” comes from the expert panelists who made no specific “determinations” on the record concerning habitat.
Another example of the Director’s failure to make a rational connection between the “best science” and his decision is his discussion of the destruction of
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habitat by conversion to agricultural use. He acknowledges that this conversion has destroyed “many square miles of sagebrush habitat” over time, but concludes that “this conversion occurs at such relatively low levels today that we do not consider it a threat to the greater sage-grouse on a range-wide basis.” Id. at 2255. That conclusion comes out-of-the-blue with no support in the discussion that precedes it. Moreover, it is directly contradicted by the CA, which concludes that “[l]ands continue to be converted to agriculture because technological advances in irrigation methods now permit expansion into steeper terrains further from river flood plains.” See CA at p. 13-6.
The Director himself recognized that the CA was authoritative and objective, see 70 Fed. Reg. at 2249, yet failed to explain why he departed from its conclusions on habitat. The ESA requires the Director to consider the “present or threatened” destruction of habitat. 16 U.S.C. § 1533(a)(1). The FWS must make a rational connection between the facts found and the choices made. Pacific Coast Federation of Fishermen's Ass'n, Inc. v. NMFS, 265 F.3d 1028, 1034 (9th Cir.2001). That rational connection cannot be discerned here. Thus, the Court finds that the Director’s 12-Month Finding is arbitrary and capricious. 5. Existing Regulatory Mechanisms
The FWS is required to determine whether the “inadequacy of existing
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regulatory mechanisms” warrants listing the sage-grouse. See 16 U.S.C. § 1533(a)(1)(D). Accordingly, the FWS reviewed the regulatory mechanisms on state and private lands that accounted for about 32% of sage-grouse habitat. The FWS concluded that it “does not have complete information” about state endowment lands, and was “not aware of any county or city ordinances that provide protection specifically for the greater sage-grouse or its habitats on private land.” See 70 Fed.Reg. at 2271, 2272.
With regard to federal regulations, about 46% of sage-grouse habitat is on BLM administered land. Id. at 2272. The principal threat in the eastern region was energy development, and so the FWS reviewed how the BLM was protecting sagegrouse from energy development. The FWS concluded that it had no information on (1) how many “older” oil and gas leases had stipulations that addressed sagegrouse protections; (2) how many more-recent leases were granted exceptions, modifications, or waivers of stipulations pertaining to sage-grouse protections; and (3) the results of Best Management Practices that were designed by the BLM to improve sage-grouse habitat.
Despite these gaps of information for 78%4 of the sage-grouse’s habitat, the
4 The 78% is computed by adding the BLM land (46%) with the state and private land (32%).
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Director was “encouraged that sage-grouse and sagebrush conservation efforts will moderate the rate and extent of habitat loss for the species in the future.” Id. at 2279. He never explained why the information gap did not matter. And he never explained what had changed since his 90-day finding, which concluded that habitat degradation and population declines indicated that existing regulatory mechanisms, particularly at the federal level, “may be inadequate with regard to addressing threats to the species.” See 69 Fed.Reg. At 21492. And finally, he never explained how he could be “encouraged” by conservation efforts while at the same time finding that “it was not necessary to rely on the contributions of any of the local, State, or other planned conservation efforts that met the standard in PECE.” See 70 Fed.Reg. At 2244.
While an agency may reach different conclusions than those signaled in the 90-day finding, it must explain why. See Northwest Ecosystem Alliance v. USFWS, 475 F.3d 1136 (9th Cir. 2007). Lacking data on existing programs, and deciding not to review the PECE conservation programs, the Director must have been relying on his assumptions about future conservation efforts; assumptions that “cannot be relied upon in an agency’s decision not to list.” See Trout Unlimited v Lohn, 2007 WL 2973568 at *25 (D.Or. July 13, 2007).
The FWS’s failure to coherently consider the adequacy of existing
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regulatory mechanisms renders its decision arbitrary and capricious. 6. Julie MacDonald
Julie MacDonald was a Deputy Assistant Secretary with responsibility for overseeing FWS operations, including its ESA reviews. She participated in the sage-grouse review at issue here.
In 2006, the Office of Inspector General (OIG) received an anonymous complaint that MacDonald had “persistently harassed, bullied, and insulted FWS employees to change documents and ignore good science related to the Endangered Species Program.” See OIG Report at p. 4. The former Director of the FWS Endangered Species Program told OIG investigators “that many of the scientific reports his office has issued have been edited extensively by MacDonald, who has no background in biology, and cited the Sage Grouse Risk Analysis as an example.” Id. He explained that MacDonald “bypassed managers to speak directly with field staff, often intimidating and bullying them into producing documents that had the desired effect she and the former Assistant Secretary wanted.” Id. MacDonald’s goal, this source stated, was that she “did not want to accept petitions to list species as endangered.” Id.
The OIG Report is filled with instances of MacDonald’s attempts to improperly alter the “best science” findings. Specifically with regard to the sage-
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grouse review at issue here, the Portland Assistant Regional Solicitor for the FWS said that MacDonald’s conduct in the sage-grouse review was “‘the most brazen case of political meddling’ he had seen.” Id. at p. 12.
The Administrative Record in this case contains e-mails that confirm the OIG Report accounts. One example deals with the evaluation of existing regulatory mechanisms to protect the sage-grouse. The Court noted above that there was a singular lack of data on measures taken by the BLM to protect the sage grouse from energy development, the single largest risk in the eastern region. The e-mails show that the FWS staff was repeatedly frustrated in their attempts to obtain the data from the BLM. See GSG Emails 4385. Accordingly, an early draft of the staff’s analysis – designed to be presented to the expert panel and Decision Support Team – stated as follows: “While the BLM has regulatory mechanisms to manage conserve [sic] greater sage-grouse habitat on the lands they manage, we have no specific data regarding specific implementation of the above regulations for this species, or the monitored results. Therefore we are unable to evaluate the effectiveness of these regulations for the protection of sage-grouse and their habitats on BLM lands.” Id.
MacDonald responded to this e-mail two days later, stating that she and others would “help you [the staff] do the assessment of existing regulatory
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protections for the sage-grouse.” See GSG Email 13074. The revised version deleted the language quoted above.
This is just one of many examples in the record. MacDonald had extensive involvement in the sage-grouse listing decision, used her intimidation tactics in this case, and altered the “best science” to fit a not-warranted decision.
This Court is not the first court to notice MacDonald’s tactics. In Center for Biological Diversity v. FWS, 2005 WL 2000928 (N.D.Cal. 2005), the court set aside a FWS decision under the ESA due to an “irregularity” in the FWS process. Specifically, the court cited pressure from MacDonald to reach an “ordained outcome” regardless of the best science. Id. at *15.
MacDonald’s principal tactic is to steer the “best science” to a pre-ordained outcome. That may explain why so much of the “best science” in this case was verbally communicated and never reduced to writing in any analytical or rigorous manner. This process allows the ultimate decision-makers to subjectively bend the “best science” to their own ends, while obscuring any inconsistencies. In other words, MacDonald’s principal tactic dovetails precisely with the principal weakness in this case. For that reason, MacDonald’s extensive involvement in the sage-grouse listing decision is an independent reason for the Court’s finding that the Director’s 12-Month Finding is arbitrary and capricious under the APA.
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6. Conclusion For the reasons expressed above, the Court finds that the 12-Month Finding
contained in 70 Fed. Reg. 2244 et. seq. is arbitrary and capricious under the APA. Accordingly, the Court will grant WWP’s motion for summary judgment, reverse the FWS’s decision, and remand the case to the agency for further consideration. The Court will deny the other motions, and will issue a separate Judgment as required by Rule 58(a)(1).
DATED: December 4, 2007 Honorable B. Lynn Winmill Chief U. S. District Judge
Memorandum Decision – Page 35

 
 Case 4:06-cv-00277-BLW Document 180 Filed 12/12/08 Page 1 of 4

RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division JEAN E. WILLIAMS, Chief LISA L. RUSSELL, Assistant Chief ROBERT P. WILLIAMS, Trial Attorney Wildlife and Marine Resources Section Environment & Natural Resources Division United States Department of Justice Ben Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Tel: (202) 305-0206 Fax: (202) 305-0275
Attorneys for Federal Defendant
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

WESTERN WATERSHEDS PROJECT,

)

)

Plaintiff,

)

)

v.

)

)

U.S. FISH AND WILDLIFE SERVICE,

)

)

Defendant.

)

)

_______________________________________)

Civ. No. 06-277-BLW
JOINT STIPULATION REGARDING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS (Dckt. No. 138)

WHEREAS, Plaintiff WESTERN WATERSHEDS PROJECT ("WWP") has filed a Motion For Award Of Attorney Fees And Litigation Expenses in this matter (Docket No. 138), pursuant to Fed. R. Civ. P. 54(d) and the Equal Access to Justice Act, 28 U.S.C. § 2412(d); and
WHEREAS Plaintiff and Federal Defendant U.S. Fish & Wildlife Service agree that it is in the public interest and the interest of the parties to settle the Plaintiff’s claim for attorneys' fees and costs in this action without protracted litigation;

Case 4:06-cv-00277-BLW Document 180 Filed 12/12/08 Page 2 of 4
NOW, THEREFORE, WWP and the Service, by and through their undersigned counsel, hereby stipulate as follows:
1. Federal Defendant agrees to settle all of Plaintiff’s claims for costs and attorneys' fees in the above-captioned litigation for a total of $135,000.00. Plaintiff agrees to accept payment in electronic form and further agrees to furnish Federal Defendant with the information necessary to effectuate this payment. Federal Defendant agrees to process the fee payment within 30 days of the receipt of a completed vendor certification form from Plaintiff or the approval of this agreement by the Court, whichever is later.
2. Plaintiff agrees to accept payment of $135,000.00 in full satisfaction of any and all claims for attorneys' fees and costs of litigation to which Plaintiff may be entitled with respect to the above-captioned litigation, through and including the date of this agreement.
3. The parties agree and acknowledge that this settlement is a compromise to avoid further litigation only and has no precedential value as to the merits of any claims.
4. Nothing in this agreement relieves Federal Defendant of its obligation to act in a manner consistent with applicable federal, state, or local law, and applicable appropriations law. No provision of this Agreement shall be interpreted as a commitment or requirement that Federal Defendant obligate or pay funds in violation of the Anti-Deficiency Act, 31 U.S.C. § 1341, or any other law or regulation.
5. The parties agree that this Agreement was negotiated in good faith and it constitutes a settlement of claims that were vigorously contested, denied, and disputed by the parties. By entering into this Agreement, the parties do not waive any claim or defense.
2

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6. The undersigned representatives of each party certify that they are fully authorized by the party or parties they represent to execute this stipulation.
7. By entering into this stipulation, Federal Defendant does not waive any right to contest fees claimed by Plaintiff or Plaintiff’s counsel, including the hourly rate, in any future litigation. Further, this Stipulation as to attorneys' fees and costs has no precedential value and shall not be used as evidence in any other attorneys' fees litigation.
IT IS SO STIPULATED. Dated: December 12, 2008
/s/ Laird Lucas Laurence ("Laird") J. Lucas (ISB # 4733) Attorney for Plaintiff

Dated: December 12, 2008

/s/ Robert P. Williams Robert P. Williams U.S. Department of Justice Attorney for Federal Defendant

3

Case 4:06-cv-00277-BLW Document 180 Filed 12/12/08 Page 4 of 4

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 12th day of December, 2008, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:

Laurence J. Lucas Email: llucas@lairdlucas.org
Michael B. Wigmore Email: michael.wigmore@bingham.com
Robert A. Nicholas Email: bnicho@state.wy.us
David F. Hensley Email: dehensley@gov.idaho.gov
Christopher H. Meyer Email: chrismeyer@givenspursley.com
Sonya D. Jones Email: sdj@pacificlegal.org
Jared W. Allen Email: allen@idahofallslaw.com
Timothy J. Monahan Email: tim.monahan@state.co.us

Todd C. Tucci Email: ttucci@advocateswest.org
Sandra P. Franco Email: s.franco@bingham.com
William G. Myers III Email: wmyers@hollandhart.com
Thomas C. Perry Email: tperry@osc.idaho.gov
Gary G. Allen Email: garyallen@givenspursley.com

/s/ Robert P. Williams Robert P. Williams

 
 Case 4:06-cv-00277-BLW Document 187 Filed 03/08/10 Page 1 of 20

Todd C. Tucci (ISB # 6526) ADVOCATES FOR THE WEST P.O. Box 1612 Boise, ID 83701 (208) 342-7024 (208) 342-8286 (fax) ttucci@advocateswest.org
Laurence (“Laird”) J. Lucas (ISB # 4733) P.O. Box 1342 Boise, Idaho 83701 (208) 424-1466 (phone and fax) llucas@lairdlucas.org
Attorneys for Plaintiff Western Watersheds Project

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

WESTERN WATERSHEDS PROJECT, )

)

Plaintiff,

)

)

vs.

)

)

U.S. FISH AND WILDLIFE SERVICE, )

)

Defendant.

)

No. 06-cv-277-BLW
FIRST SUPPLEMENTAL COMPLAINT

INTRODUCTION 1. In December 2007, the Court ruled in this case that Defendant U.S. Fish and Wildlife Service acted unlawfully in determining that Endangered Species Act listing of the greater sage-grouse was “not warranted,” due to improper political interference in the listing process and the Service’s arbitrary treatment of the best available science showing that sagegrouse populations and habitats are deeply imperiled. See Docket No. 118. The Court remanded for the Service to make a new Endangered Species Act listing determination; and

FIRST SUPPLEMENTAL COMPLAINT -- 1

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approved remand stipulations in which Plaintiff Western Watersheds Project agreed that the Service could delay the listing decision to take into account the latest sage-grouse science, as reported in a Studies for Avian Biology “Monograph” being prepared by leading sage-grouse researchers. See Docket Nos. 130, 137 & 183.
2. Based on that Monograph and other best available science, the Service announced on March 5, 2010 its new finding that ESA listing of greater sage-grouse is “warranted” under the ESA, because of the many threats facing sage-grouse populations and their sagebrush habitats – particularly habitat fragmentation from energy development, livestock grazing, infrastructure, fires, weed invasions, and climate change impacts. See U.S. Fish and Wildlife Service, “Endangered and Threatened Wildlife and Plants: 12-Month Findings for Petitions to List the Greater Sage-Grouse (Centrocercus urophasianus) As Threatened or Endangered,” available at http://www.fws.gov/mountain-prairie/species/birds/sagegrouse/FR03052010.pdf (hereafter, “March 2010 Finding”).
3. Yet despite these scientific findings acknowledging that the sage-grouse qualifies for listing as an endangered or threatened species, the Service is perpetuating its unlawful refusal to protect sage-grouse under the ESA. In the March 2010 Finding, the Service determined not to proceed with a proposed listing rule for the greater sage-grouse, asserting that its own bureaucratic backlog and lack of resources supposedly preclude it from moving forward with an ESA listing rule for the sage-grouse this year.
4. This “precluded” determination relegates the sage-grouse to the long list of ESA “candidate” species – a black hole from which few species ever emerge, and under which they receive no ESA protection – and represents yet another non-scientific, politicized, and arbitrary
FIRST SUPPLEMENTAL COMPLAINT -- 2

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determination that prevents the sage-grouse from obtaining the ESA protection that it urgently needs.
4. As alleged below, the Court must reject the Service’s “precluded” finding as being arbitrary, capricious, and contrary to law. The Service cannot justify its refusal to proceed with a sage-grouse listing based on its own bureaucratic listing backlog and other grounds cited in the March 2010 Finding – particularly when the Service has already invested the bulk of the resources needed for a sage-grouse listing in rendering the March 2010 Finding; and when the Service has already been found by this Court (and many others) to have repeatedly violated the ESA in not proceeding to list sage-grouse and other species as directed by Congress. Moreover, the Service has abjectly failed to make expeditious progress in addressing the large backlog of species that warrant ESA protection; and it is relying on improper budgetary and other excuses to avoid proceeding with the greater sage-grouse listing, contrary to the ESA’s statutory requirements and without rational justification.
5. Plaintiff Western Watersheds Project thus brings this First Supplemental Complaint to challenge the “precluded” part of the Service’s March 1010 Finding that ESA listing of greater sage-grouse is “warranted, but precluded,” as being arbitrary, capricious, and contrary to law. WWP asks the Court to quickly review and reverse that “precluded” determination, and remand with instructions for the Service to promptly publish a proposed listing rule within a set deadline, so that greater sage-grouse can finally receive the ESA protections that science – and the Service’s own “warranted” determination – show are necessary to prevent this icon of the sagebrush sea from declining further toward extinction.
FIRST SUPPLEMENTAL COMPLAINT -- 3

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JURISDICTION, VENUE, AND PARTIES 7. This Court has jurisdiction and venue under the same statutory authorities cited in the original Complaint herein; and the Plaintiff and Defendant in this action remain the same. See Docket No. 1, ¶¶ 5-17. 8. The Service’s March 5, 2010 “precluded” determination for the greater sagegrouse, as challenged here, is a final agency action which is subject to judicial review by the Court pursuant to the APA, 5 U.S.C. § 701 et seq., and which the ESA expressly states is “subject to judicial review.” 16 U.S.C. § 1533(b)(3)(C)(ii).
SUPPLEMENTAL FACTUAL ALLEGATIONS Background: Sage-Grouse Listing History. 9. In December 2003, Western Watersheds Project and others petitioned the Service to list greater sage-grouse as threatened or endangered. AR 1_6. 10. In April 2004, the Service issued a 90-day finding that ESA listing of greater sage-grouse “may be warranted.” 69 Fed. Reg. 21484 (4/21/04) (AR 2_1). This finding cited habitat and population losses that sage-grouse had already suffered, as well as numerous threats including habitat losses and fragmentation from agriculture, livestock grazing, infrastructure (powerlines, roads, fences, etc.), energy development, weed invasions, and fires. Id. The Service also noted that existing regulatory mechanisms “may be inadequate” to protect sagegrouse from these threats. Id. 11. In June 2004, the Western Association of Fish and Wildlife Agencies (WAFWA) published a “Conservation Assessment of Greater Sage-Grouse and Sagebrush Habitats,” prepared by Dr. Jack Connelly of the Idaho Department of Fish and Game and other leading sage-grouse experts. AR 4_213 (GSG 7002-7611). This peer-reviewed Conservation
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Assessment addressed in detail the historical losses of sage-grouse habitats; the status of remaining sage-grouse populations; and many threats facing sage-grouse, including loss and fragmentation of sagebrush habitats from agriculture, grazing, energy development, infrastructure, weed invasions, fire, and others. Id. The Conservation Assessment concluded that “long term population changes coupled with the continued loss and degradation of habitat and other factors (including West Nile virus) do not provide causes for optimism” for the future survival of sage-grouse. Id., p. 6-1 (emphasis added).
12. In November 2004, the Bureau of Land Management adopted a “National SageGrouse Habitat Conservation Strategy,” which it submitted to the Service for consideration in the ESA listing determination. GSG 10282. BLM advised the Service that this National SageGrouse Habitat Conservation Strategy would be implemented and would be effective in conserving sage-grouse habitats and populations on BLM lands, which comprise the majority of remaining sage-grouse habitat; and hence ESA listing would be unnecessary.
13. In January 2005, the Service issued a 12-month finding that listing greater sagegrouse under the ESA is “not warranted.” 70 Fed. Reg. 2244-82 (1/12/05) (AR 24527-702). Despite the population declines, habitat losses, and threats identified in the WAFWA Conservation Assessment and other scientific literature, the Service cited “uncertainty about the future impact of threats to sage grouse,” and even “reasons to be encouraged by current assessments of grouse population status, trends and distribution,” as reasons why it refused to propose listing the sage-grouse under the ESA. Id., at 2281 (emphasis added).
14. After Plaintiff Western Watersheds Project brought this litigation to challenge the January 2005 “not warranted” determination, the Service filed the Administrative Record with this Court; and that record revealed that non-scientific political appointees in the Department of
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Interior interfered extensively in the Service’s status review and determination for the sagegrouse listing, led by Deputy Assistant Secretary Julie MacDonald. See WWP’s Separate Statement of Facts (Docket No. 80-3) (citing Administrative Record materials).
15. An investigation by the Department of Interior Inspector General similarly found that Deputy Assistant Secretary MacDonald exercised improper interference and influence to prevent the listing of greater sage-grouse and many other high-profile species during the administration of President George W. Bush. See Docket No. 80-18 (March 2007 “Report of Investigation: Julie MacDonald, Deputy Assistant Secretary, Fish, Wildlife and Parks,” U.S. Dept. of Interior, Office of Inspector General).
16. On December 4, 2007, this Court issued its Memorandum Decision granting summary judgment to Western Watersheds Project, and reversing the January 2005 “not warranted” finding as being arbitrary, capricious and contrary to law. See Docket No. 118. The Court cited several grounds for this ruling, including: (a) the Service’s “flawed process” of using an expert panel to forecast extinction risks without involving those experts in the listing determination, and without preserving their deliberations for the record for judicial review; (b) the Service’s “failure to make a rational connection between the ‘best science’ and . . . discussion of the destruction of habitat” as addressed in the Conservation Assessment, which the Service recognized was “authoritative and objective” yet “failed to explain” why it departed from the Assessment’s findings on habitat destruction; (c) the Service’s “failure to coherently consider the adequacy of existing regulatory mechanisms,” particularly with respect to administration of BLM lands; and (d) the improper interference of Deputy Assistant Secretary MacDonald, which the Court cited as further evidence of why the Service’s “not warranted” determination did not
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comport with the best available science, as set forth in the Conservation Assessment and elsewhere. Id., pp. 21-35.
17. Based on the Memorandum Decision, the Court entered judgment on December 4, 2007, and remanded to the Service “for further consideration” in light of the Court’s rulings. See Docket No. 119.
Proceedings Before This Court On The Remand Process. 18. On December 18, 2007, Plaintiff Western Watersheds Project filed a timely “Motion To Alter Or Amend Judgment,” which asked the Court to modify its remand order so as to require the Service to make a new sage-grouse listing determination within 90 days. See Docket No. 120. 19. On January 11, 2008, the Service filed a response which was supported by a Declaration of Brian Arroyo, the Service’s Assistant Director for Endangered Species. See Docket No. 127. The Service opposed the 90-day timeframe for a new listing determination sought by Western Watersheds Project; and instead requested that the Court give it another year to make a new determination, citing the complexity of the issues and the volume of new scientific information it must consider. Id. 20. As Assistant Director Arroyo emphasized in his declaration, “determining whether greater sage-grouse warrants listing as an endangered or threatened species is among the most complex listing decisions the Service has had to make.” See Arroyo Decl., ¶ 12 (Docket No. 127-2). The reasons for this included the time and effort that the Service would have to expend in addressing “the significant new information that has become available since the 2005 finding, the new threats that must be considered, the substantial number of additional conservation efforts now directed at sage-grouse across its 11 state range, . . . as well as the
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significant amount of coordination needed” among the Service’s field offices and with other federal, state, and Tribal entities and the public, each of which he explained in some detail in his declaration. Id., ¶¶ 3-15.
21. The Service’s response also advised that a “comprehensive update” of the 2004 Conservation Assessment was being prepared by leading sage-grouse researchers; and was expected to be published as a “Monograph” in the journal Studies for Avian Biology by November 2008. See Arroyo Decl., ¶ 5. The Service advised the Court that this update “will contain data and interpretation that will be critically important to the Service’s status review for the new finding,” and that the Service “believes the findings of the updated Conservation Assessment should be considered during the new status review to ensure we make the most informed determination possible regarding the status of the greater sage-grouse.” Id. The Service further advised that, since this Monograph was expected to be published in November 2008 and would require some time to review and incorporate into its listing decision, it should be given until June 2009 to issue the decision. See Docket No. 127. pp. 3, 14-15.
22. In response to these points, and in order to ensure that the new sage-grouse listing determination would be based on thorough consideration by the Service of the best scientific information available (including the “Monograph”), Western Watersheds Project entered into a “Stipulation On Remand” with the Service, which was submitted to the Court on January 30, 2008. See Docket No. 130. Through this stipulation, Western Watersheds Project agreed that the Service would be allowed until May 2009 to issue a new sage-grouse listing determination so that it could take into account the scientific information from the upcoming Monograph; and thus Plaintiff withdrew its Motion To Alter Or Amend Judgment. Id.
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23. On February 7, 2008, the Service filed a motion to withdraw from this stipulation, supported by a second Declaration of Brian Arroyo, which asserted that the Department of Interior had not properly approved the stipulation. See Docket No. 131. After briefing and hearing, the Court denied this motion; and approved the Stipulation On Remand. See Docket No. 138.
24. On February 28, 2008, the Service published a Federal Register notice to initiate a new status review of greater sage-grouse, 73 Fed. Reg. 10218; and later extended the period for public submission of information until June 27, 2008. See 73 Fed. Reg. 23172 (4/29/2008). Western Watersheds Project and other conservation groups submitted extensive information to the Service in response to these notices.
25. On August 29, 2008, the Service submitted a status report to the Court under the Stipulation On Remand, which advised that the Service was proceeding with the new status review; but that the Monograph was delayed past the November 2008 anticipated publication date, and hence the Service would confer with Western Watersheds about the schedule for a new finding in light of that delay, as provided in the Stipulation On Remand. See Docket No.173.
26. Following various communications thereafter about the status of the Monograph and the Service’s timing needs to incorporate the Monograph chapters into its status review, Western Watersheds Project and the Service filed an Amended Joint Stipulation on Remand on May 29, 2009. See Docket No. 183. Through this amended stipulation, Western Watersheds Project agreed that the Service could have until February 26, 2010 to issue a new listing determination on greater sage-grouse, in light of the delay in publication of the Monograph and to give the Service adequate time to consider and incorporate the Monograph into the listing
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determination. On June 15, 2009, the Court approved the Amended Joint Stipulation on Remand. Docket No. 184.
27. On February 22, 2010, the Service requested and obtained a one-week extension of the February 26, 2010 deadline for the new listing determination in the Amended Joint Stipulation on Remand, because of the sudden death of the Service’s director Sam Hamilton. Docket No. 185.
March 2010 “Warranted, But Precluded” Finding. 28. On March 3, 2010, the Service’s Acting Director signed the “warranted, but precluded” finding, though the Service did not publicly announce it until March 5, 2010, when it posted the Finding on its website, at the link noted above. See March 2010 Finding, p. 103. 29. On March 5, 2010, Interior Secretary Ken Salazar and other officials held a media conference call to discuss the March 2010 Finding; and on the same date, the BLM issued a new Instruction Memorandum regarding future management of energy and other activities on BLM public lands in sage-grouse habitat, which is available on BLM’s website at: http://www.blm.gov/wo/st/en/info/newsroom/sage_grouse_conservation/sage-grouse_IM.html. 30. In the media presentations and new Instruction Memorandum, the Interior Department and BLM repeatedly referenced the 2004 National Sage-Grouse Habitat Conservation Strategy, as if that Strategy forms a meaningful part of the Department’s effort to protect greater sage-grouse and thus supports the “warranted, but precluded” finding. 31. Such representations are misleading, at best. The BLM and Interior have not followed the National Strategy in any meaningful way since it was written in 2004 as part of the attempt to avoid ESA listing of sage-grouse. Western Watersheds has cited BLM’s failure and refusal to implement the National Sage-Grouse Habitat Conservation Strategy in other pending
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litigation before this Court, including Western Watersheds Project v. Salazar, 08-cv-516-BLW (D. Idaho) (challenging numerous Resource Management Plans adopted by BLM since 2004 across the greater sage-grouse range without adhering to – or even mentioning – the 2004 National Sage-Grouse Habitat Conservation Strategy); and Western Watersheds Project v. Salazar, No. 08-cv-435-BLW (D. Idaho) (challenging hundreds of BLM grazing and energy leasing decisions across Great Basin core population of greater sage-grouse, also adopted without adhering to the 2004 National Sage-Grouse Habitat Conservation Strategy).
32. The fact that the Interior Department has resurrected the 2004 National SageGrouse Habitat Conservation Strategy now as part of the decision to avoid listing greater sagegrouse again under the ESA – when that Strategy has just been gathering dust on a shelf for the last five years, even while the Interior Department and its subordinate agencies have allowed extensive energy development and infrastructure to further degrade and fragment sage-grouse habitats – underscores that the March 2010 “precluded” determination to avoid listing sagegrouse reflects a politically-influenced decision that is arbitrary, capricious, and contrary to law.
33. The text of the March 2010 Finding bears out this conclusion. Most of its 103 pages is devoted to accurate analysis of the best available science showing that greater sagegrouse (and two distinct population segments of the greater sage-grouse, known as the Columbia Basin and Bi-State segments) “warrant” ESA protection under the five listing factors set forth in ESA Section 4. See March 2010 Finding, pp. 3-95. By contrast, the “precluded” portion of the March 2010 Finding relies on factual mischaracterizations and omissions, unfounded assertions, and legal misreadings of the ESA to avoid proceeding with a listing rule. Id., pp. 95-103.
34. Specifically, the “warranted” portion of the March 2010 Finding is based on extensive scientifically-based discussion and analysis of the current status of, and threats to,
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greater sage-grouse populations and habitat, based on which the Service concluded – correctly – that greater sage-grouse “warrants” listing as an endangered or threatened species under the ESA, as does its “Bi-State” distinct population segment (located in the Mono Basin area of California and Nevada).1
35. This “warranted” finding and supporting analysis cited and followed not only the 2004 Conservation Assessment and the Monograph, but other scientific data and literature as well. Id., pp. 3-95. The Service’s analysis here underscores the many increasing threats facing sage-grouse populations and remaining habitats, including from agriculture, grazing, infrastructure, energy development (both traditional and renewable energy sources), invasive weeds and fires, but also the threats posed by climate change, West Nile virus, and other issues that the Service did not previously address in detail. Id.
36. The “warranted” finding also addressed in detail the inadequacy of existing regulatory mechanisms to protect greater sage-grouse populations and habitats from these many threats; including the inadequacy of BLM’s land use planning and other management decisions, which have not incorporated long-term measures necessary to ensure conservation of sagegrouse. See id., pp. 62-72.
37. The analysis and citations in the March 2010 Finding thus demonstrate that the Service’s “warranted” determination is based on the best available science and was not tainted by political interference – a welcome sign of progress.
38. By contrast, the March 2010 Finding’s subsequent determination that pursuing a listing of greater sage-grouse is “precluded” at this time lacks the same rigor, accuracy, and
1 The Service previously found that the Columbia Basin distinct population segment also warrants ESA listing, yet is also “precluded” from a proposed listing. That determination is reiterated in the March 2010 Finding.
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rational discussion seen in the “warranted” portion of the Finding. See March 2010 Finding, pp. 95-103. Indeed, the “precluded” determination is premised on false characterizations and factual misrepresentations or omissions, as well as legal errors, including but not limited to the following:
A. In asserting that proceeding with a proposed listing rule for the sage-grouse is “precluded” by other listing activities, the March 2010 Finding improperly relies on the Service’s negative 90-day and 12-month findings as well as “warranted-but-precluded” determinations for other species, which are not proper considerations for making a “warranted, but precluded” finding based on the pendency of other proposed listings under the ESA, see 16 U.S.C. §
1533(b)(3)(B)(iii)(I); B. The Service’s assertion that it lacks financial resources to proceed with a
proposed listing rule for the sage-grouse in FY 2010 is also not a proper statutory consideration, see, e.g., Center for Biological Diversity v. Norton, 304 F. Supp. 2nd 1174, 1179-80 (D. Az. 2004) (“the solution of being over-obligated and under-funded rests with Congress, and not with the Court”);
C. The March 2010 Finding never addressed the specific costs associated with a greater sage-grouse proposed listing. In particular, the March 2010 Finding is arbitrary and capricious in failing to acknowledge that the Service has already expended the bulk of resources and funding required for a sage-grouse proposed listing rule, because it has now devoted the staff time and resources necessary to conduct the latest status review and prepare the lengthy “warranted” determination in response to the Court’s remand order. Indeed, the Service has now conducted all the tasks that it identified previously as being necessary – including by thoroughly evaluating the Monograph and the other scientific literature, evaluating the adequacy
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of conservation plans and regulatory measures, coordinating with other agencies and its own field office, and undertaking the other steps previously identified by the Service (including in the Arroyo Declaration) as being needed to determine whether sage-grouse warrant ESA listing. Having already devoted all these resources to the greater sage-grouse listing, it is arbitrary and capricious for the Service to claim it is now “precluded” from proceeding with proposing a listing rule, yet the March 2010 Finding ignores these facts;
D. Similarly, while the March 2010 Finding reports that other listing rules have cost between $11,000 and $305,000 (p. 95), it does not provide any further analysis of what those costs were or what remaining costs might be associated with proposing a sage-grouse listing rule as this time, thus depriving the Court of the ability to conduct any meaningful review of the Service’s assertion that the proposed listing is “precluded” based on cost considerations;
E. In fact, the Service’s listing budget has increased in the current fiscal year from the prior year, and the Service has more funds available now for listings than it did in the past, yet the Service’s track record shows that it is listing far fewer species per allocated listing dollars than in the past – for example, the number of species listed by the Service per million dollars spent on listing declined from almost 30 in 1997 to less than 5 in 2004 – but these facts again are not addressed or explained in the March 2010 Finding;
F. Although the Service relies on its 1983 listing priority guidance to contend that numerous other “warranted, but precluded” (i.e., candidate) species have a listing priority number higher than that assigned to the greater sage-grouse (and the Columbia Basin and BiState DPSs), thus supposedly precluding the Service from proposing a sage-grouse listing rule this fiscal year (pp. 96-98), in truth the Service does not always follow that listing priority
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guidance, and even concedes that other factors – including court orders and settlements – have established its highest priority for listing actions; and
G. It is further arbitrary and capricious for the Service to rely in the 1983 listing priority guidance to avoid proceeding with a proposed listing rule for the greater sage-grouse under the facts presented here, where the Service has been found by the Court to have acted unlawfully in refusing to proceeding with a greater sage-grouse listing back in January 2005, and several years have now gone by while the sage-grouse has further declined and now admittedly warrants ESA protection – yet the Service is using its alleged backlog of other listing actions and insufficient resources to continue depriving the sage-grouse of needed ESA protection, thus perpetuating the wrongful impacts of its own past unlawful actions in the sage-grouse and other listing matters.
39. In addition, the March 2010 Finding is arbitrary, capricious, and contrary to law in justifying the “precluded” determination for sage-grouse listing by contending that “expeditious progress” is being made to add qualified species to the ESA lists of endangered or threatened species, as required for a “warranted, but precluded” determination under 16 U.S.C. § 1533(b)(3)(B)(iii)(II). In truth, the Service is not making “expeditious progress” in listing species under the ESA, as demonstrated by the following facts which were not disclosed or addressed in the March 2010 Finding, or were mischaracterized by the Service:
A. Between 1974 and 2000, the Service listed approximately 45 species per year, but since then its pace of listings has dropped to just a few listing per year in the last decade;
B. Even at the prior pace of listing dozens of species per year, on average, the Department of the Interior’s Inspector General (“IG”) conducted a comprehensive review of the Service’s listing program in 1990, and found that the Service was not making expeditious
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progress in adding “candidate” species to the endangered and threatened species lists. Considering the number of candidate species awaiting listing, IG found that, “even if the Service meets its goal of listing 50 species per year . . . it may take from 38 to 48 years at current listing rates to list just those species now estimated to qualify for protection under the Act.” The IG also revealed that 34 candidate species – 17 species of plants and 17 species of animals – had gone extinct since 1980. The IG concluded that listing fifty species per year did not qualify as expeditious progress;
C. In December 1992, the Service promised to substantially increase its rate of listings in order to settle a lawsuit. See Fund for Animals v. Lujan, Civ. No. 92-800 (GG) (D.D.C. Dec. 15, 1992). The Service listed an average of 89 species per year between 1992 and 1995, and an additional 152 species between February 1996 and September 1997;
D. Between January 2001 and March 2005, the Bush Administration listed only 30 species in total, averaging approximately 7 species per year. During that timeframe, the Service added 27 more species to the backlog of candidate species awaiting listing;
E. In May 2004, the Service published a “Candidate Notice of Review” (CNOR) reporting that the Service had listed only 4 species since the 2002 CNOR and that 279 species were “warranted-but-precluded” (i.e., candidate) species;
F. On May 11, 2005, the Service published a new CNOR reporting that 286 species were warranted-but-precluded (i.e., candidate species), and revealing that only 2 species had been listed since the 2004 CNOR;
G. On September 12, 2006, the Service published another CNOR reporting that 279 species were warranted-but-precluded (i.e., candidate) species, some of which had been on the list for more than a decade;
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H. In the summer of 2008, the Service’s Director acknowledged in testimony before the House of Representatives’ Committee on Appropriations that the Service had failed to list a single species for the past 661 days when it had been given millions of dollars for that purpose;
I. On December 10, 2008, the Service published a new CNOR documenting that it listed only one species between September 30, 2007 and September 30, 2008 – the polar bear, which was listed as a result of court orders and settlement. 73 Fed. Reg. 75176. The Service proposed just one species for listing during FY 2008: Phyllostegia hispida (a Hawaiian flowering plant). The 2008 CNOR also documented actions that were funded but not completed in FY 2008, including proposed rules to list 90 species, the majority of them endemic to the Hawaiian islands. 73 Fed. Reg. at 75189;
J. On June 29, 2009, the House Committee on Appropriations issued a report expressing “[concern] about the known backlog of candidate species that warrant listing proposals,” and directed the Service to “ensure the orderly and timely listing of any species warranting the protection of the Endangered Species Act”;
K. Dr. Nicole J. Rosmarino, an expert in policy analysis employed by WildEarth Guardians, has recently analyzed the Service’s list of candidate species and determined that “the Top 40 most imperiled candidate species wait, on average, at least 13 years to be listed.” See Declaration of Nicole J. Rosmarino, November 9. 2009, Docket No. 51-3 in WildEarth Guardians v. Salazar, CV-09-574-FJM (D. Ariz.), at 6;
L. On November 9, 2009, the Service published its latest CNOR revealing that the Service listed only a single species during fiscal year 2009 – Phyllostegia hispida – leaving a backlog of 249 candidate species. During FY 2009, the Service proposed four listing rules covering 54 of the 90 species that had been funded for FY 2008, including 48 species endemic to
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the island of Kauai. 73 Fed. Reg. 62591, 62742. Actions that were funded in FY 2009 but not completed included final listing determinations for slickspot peppergrass, coastal cutthroat trout, and 48 species endemic to the island of Kauai; and
M. In the March 2010 Finding, the Service indicates that it has completed five listing rules so far in FY 2010, including for slickspot peppergrass and several foreign species, all of which the Service was required to complete under court order.
40. These and other facts demonstrate that the Service is not making “expeditious progress” in listing species under the ESA and removing “warranted-but-precluded” species from the candidate list; and that it is arbitrary, capricious, and contrary to law for the Service to refuse to proceed with a sage-grouse listing based on the false assertion that it is making expeditious progress.
41. The Service’s continued refusal to provide ESA protection to the greater sagegrouse through listing as an endangered or threatened species means that the legal protections that would be afforded sage-grouse under the ESA do not apply, and that federal agencies as well as state or local government and private parties can continue to approve or undertake actions that harm the sage-grouse (including through habitat destruction or fragmentation), thereby causing existing populations to decline and/or become more isolated, and further imperiling the species.
42. Plaintiff Western Watersheds Project, as an organization and on behalf of its staff, members and supporters, is immediately and irreparably injured by the Service’s unlawful “precluded” finding for the greater sage-grouse, and by the habitat and population losses and harms that are occurring and will foreseeably occur as a result of the Service’s unlawful action.
43. In order to prevent irreparable harm to the greater sage-grouse, to Plaintiff and its staff, members, and supporters, and to the public interest, the Court should promptly conduct
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judicial review of the “precluded” determination in the Service’s March 2010 Finding, and reverse and remand the same with instructions for the Service to publish a proposed listing rule for the greater sage-grouse (and the two distinct population segments identified in the Finding) within a court-ordered deadline.
FIRST SUPPLEMENTAL CLAIM FOR RELIEF: March 2010 “Precluded” Finding Is Arbitrary, Capricious, and Contrary To Law
44. Plaintiff incorporates by reference all preceding paragraphs. 45. For reasons indicated above, and as will be further demonstrated to the Court, the Service’s “precluded” determination in the March 2010 Finding is arbitrary, capricious, and contrary to law under the APA and the ESA; and must be reversed and remanded by the Court.
PRAYER FOR RELIEF WHEREFORE, Plaintiff Western Watersheds Project respectfully prays that the Court grant the following relief: A. Declare, hold, and adjudge that the Service’s “precluded” determination in the March 2010 Finding is arbitrary, capricious and contrary to law; B. Reverse and remand the “precluded” determination with instructions for the Service to promptly publish a proposed listing rule for the greater sage-grouse (and the two distinct population segments) on a court-ordered deadline; C. Award Plaintiff its reasonable attorney fees and litigation expenses incurred in bringing this First Supplemental Complaint under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), and all other applicable authority; and D. Enter such other and further relief as the Court may deem appropriate to protect the greater sage-grouse and the public interest.
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Dated: March 8, 2010.

Respectfully submitted,
___/s/ Laird J. Lucas________________ Laurence (“Laird”) J. Lucas (ISB # 4733) Todd C. Tucci (ISB # 6526)
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of March 2010, I electronically filed the foregoing FIRST SUPPLEMENTAL COMPLAINT with the Clerk of the Court using the CM/ECF system, which sent a Notice of Electronic Filing to the counsel of record listed below:

Robert P. Williams U.S. Dept. of Justice robert.p.williams@usdoj.gov
Deborah Ferguson Assistant US Attorney Deborah.Ferguson@usdoj.gov

bnicho@state.wy.us
William G. Myers, III Murray Feldman Holland & Hart wmyers@hollandhart.com mfeldman@hollandhart.com

Chris Meyer Givens Pursley LLP chris.meyer@givenspursley.com
Gary Allen Givens Pursley LLP GaryAllen@givenspursley.com
Michael B. Wigmore Bingham McCutchen LLP michael.wigmore@bingham.com

David Hensely dhensley@gov.idaho.gov
Thomas Perry tperry@osc.idaho.gov
Jared Wayne Allen allen@idahofallslaw.com
James Burling jsb@pacificlegal.org

Sandra P. Franco Bingham McCutchen LLP s.franco@bingham.com
Robert A. Nichols Senior Assistant Attorney General State of Wyoming

Sonya Jones sdj@pacificlegal.org
Timothy J Monahan tim.monahan@state.co.us

__/s/ Laird J. Lucas___________________

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