IN THE UNITED STATES DISTRJCT COURT 

FOR THE DISTRJCT OF OREGON 

PORTLAND DIVISION 

FRIENDS OF THE WILD SWAN INC. 

and ALLIANCE FOR THE WILD 

ROCKIES, INC., 

Plaintiffs, 

V. 

ROBYN THORSON, Pacific Region Director, 

U.S. Fish and Wildlife Service, U.S. FISH AND 

WILDLIFE SERVICE, S.M.R. JEWELL, 

Secretary, U.S. Department of the Interior, and 

U.S. DEPARTMENT OF THE INTERIOR, 

Defendants. 

MOSMAN,J., 

No. 3:16-cv-00681-AC 

OPINION AND ORDER 

On April 10, 2019, Magistrate Judge John V. Acosta issued his Findings and 

Recommendation (F&R) [48], recommending that I deny Plaintiffs' Motion for Leave to File an 

Amended Complaint [38]. Plaintiffs filed Objections to the F&R [50] and Defendants filed a 

Response to those Objections [55]. For the reasons stated below, I adopt Judge Acosta's F &R in 

full. 

DISCUSSION 

The magistrate judge makes only recommendations to the court, to which any party may 

file written objections. The court is not bound by the recommendations of the magistrate judge 

but retains responsibility for making the final determination. The court is generally required to 

1 - OPINION AND ORDER 
make a de novo determination regarding those portions of the report or specified findings or 

recommendation as to which an objection is made. 28 U.S.C. § 636(b)(l)(C). However, the 

court is not required to review, de novo or under any other standard, the factual or legal 

conclusions of the magistrate judge as to those portions of the F&R to which no objections are 

addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 

F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to 

review the F&R depends on whether or not objections have been filed, in either case, I am free to 

accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(l)(C). 

I previously dismissed Plaintiffs' Complaint [ 1] with leave to amend eight of Plaintiffs' 

nine claims. Order [31]. Plaintiffs were allowed twenty-eight days in which to file an amended 

complaint. Order [32]. After Plaintiffs failed to file an amendment, a final judgment was 

entered. J. [33]. Plaintiffs then appealed. Notice [34]. After the Ninth Circuit affirmed the 

Order dismissing Plaintiffs' Complaint, Plaintiffs requested leave to file an amended complaint. 

Mot. [38]. 

Judge Acosta recommends that I dismiss Plaintiffs' Motion for Leave to File an 

Amended Complaint [38] because Plaintiffs have not demonstrated that the final judgment in this 

case should be reopened under Federal Rule of Civil Procedure 60, a prerequisite to granting a 

motion to amend under Rule 15. F&R [48] at 2. In particular, Judge Acosta found that Plaintiffs 

failed to satisfy the requirements of Rule 60(b)(5) or (6). Id at 6. Under Rule 60(b)(5), a party 

seeking relief from a final judgment must show "changed circumstances." Id ( quoting Horne v. 

Flores, 557 U.S. 433,447 (2009)). Under Rule 60(b)(6), relief from a final judgment is 

appropriate if a party can "establish the existence of extraordinary circumstances." Id at 9 

(quoting Mackey v. Hoffman, 682 F.3d 1247, 1251 (9th Cir. 2012)). 

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Plaintiffs state only one objection to the F&R: that Judge Acosta was "incorrect that 

matters proceeding under the ESA do not constitute extraordinary circumstances." Obj. [50] 

at 3. Plaintiffs then request that I "confirm the magistrate judge's finding that [Plaintiffs] may 

replead their claims in a new complaint and be heard on the merits." Id. Defendants' Response 

urges that I not review Plaintiffs' Objections because "Plaintiffs do not actually point to a 

specific portion of Judge Acosta's [F&R] to which they object." Resp. [55] at 5. Defendants 

also argue that Plaintiffs mischaracterize Judge Acosta's F&R by requesting that I adopt a 

finding that Plaintiffs may be heard on the merits if they file a new complaint. Id. at 6. 

Defendants object to any order that precludes them from raising defenses prior to the 

consideration of a new complaint on the merits. Id. at 6-8. 

Reading Plaintiffs' Objections liberally, I find that they have made specific objections to 

the F &R. But I disagree with Plaintiffs' contention that all cases brought under the Endangered 

Species Act meet the "extraordinary circumstances" requirement to reopen a final judgment 

under Rule 60(b)(6). Therefore, I reject the Plaintiffs' objection to the F&R. I also find that 

Judge Acosta's F&R made no predetermination of Plaintiffs' ability to be heard on the merits if 

they choose to file a new complaint. 

CONCLUSION 

For the reasons described above, I adopt the F&R [ 48] as my own opinion. Plaintiffs' 

Motion for Leave to File an Amended Complaint [38] is DENIED. 

IT IS SO ORDERED. 

DATED this ~~y of July, 2019. 

Chief United Sta'.tes 

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