Opinion
No. Civ. S-00-0797 WBS GGH
April 26, 2001
MEMORANDUM AND ORDER
Plaintiff Butte Environmental Council brought this suit to compel defendants to designate a critical habitat for four species of fany shrimp under the Endangered Species Act ("ESA"), 13 U.S.C. § 1533(a)(3). In an order filed February 9, 2001, the court granted plaintiff's motion for summary judgment and ordered that defendants shall designate a critical habit for the four species, to the maximum extent prudent and determinable, within six months from the date of the order. Defendants move for a stay pending appeal pursuant to Federal Rule of Civil Procedure 62(c).
I. Factual and Procedural Background
In September of 1994, the Fish and Wildlife Service ("the Service") listed four species of fairy shrimp as endangered or threatened under the ESA. See 59 Fed. Req. 48136. The Service then determined that concurrent designation of a critical habitat for the fairy shrimp was "not prudent" because "such designation likely would increase the degree of threat from vandalism or other human activities." 59 Fed. Req. at 48151.
Prior to the hearing on plaintiff's second motion for summary judgment, defendants admitted that the 1994 "not prudent" finding was "legally vulnerable" in light of current case law, and filed a "Notice of Voluntary Remand" on November 29, 2000. Defendants further claimed that they were in the process of designating habitat for the fairy shrimp, with an estimated date of completion in November of 2003.
The United States District Court for the District of Columbia previously ruled that the Service's decision not to designate a critical habitat for the fairy shrimp was "arbitrary and capricious" under section 706(2) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), but subsequently vacated its decision when the plaintiff in that case amended its complaint to drop that claim. See Building Indus. Ass'n of Superior California v. Bruce Babbitt, No. 95-0726 (D.D.C. Mar. 31, 1999).
In an order granting plaintiff's second motion for summary judgment, the court set aside the 1994 "not prudent" finding and ordered that defendants "shall, to the maximum extent prudent and determinable, designate critical habitat for the Conservancy fairy shrimp, longhorn fairy shrimp, vernal pool fairy shrimp, and the vernal pool tadpole shrimp, and publish such final designation within six months from the date of this order [signed February 8, 2001]." (Memorandum and Order at 11, filed February 9, 2001.)
II. Discussion
The court in its discretion may suspend an injunction during the pendency of an appeal from a final judgment granting such relief. Fed.R.Civ. p. 62(c). To prevail on their motion for a stay, defendants must show (1) a strong likelihood of success on the merits on appeal; (2) that the balance of irreparable harm favors defendants; and (3) that public interest favors a stay pending appeal. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
Defendants have not shown that a stay is warranted. There is no likelihood of success on the merits of this appeal. The ESA requires concurrent designation of critical habitat, "to the maximum extent prudent and determinable," when a species is listed as endangered. See 16 U.S.C. § 1533(a)(3)(A). Although the Service initially determined that concurrent designation of critical habitat for the fairy shrimp was "not prudent," the Service later admitted that its determination was "legally vulnerable," and attempted to avoid litigation on the issue by voluntarily remanding its decision for further consideration. Prior to this court's order granting injunctive relief, defendants agreed that the Service was legally bound to complete a critical habitat designation for the fairy shrimp.
The Ninth Circuit has held that "[i]n cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties' competing interests."National Wildlife Federation v. Burlington Northern, 23 F.3d 1508, 1511 (9th Cir. 1994) (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174 (1978); Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987)). While the court is mindful of the Service's budgetary constraints, under the ESA, "the balance of hardships and the public interest tips heavily in favor of protected species." National Wildlife Federation, 23 F.3d at 1511.
Defendants' proposed date of November 2003 for final designation would result in a delay of nine years from the date the species were listed as endangered. The ESA's mandate for concurrent designation does not permit such a delay, and the imposition of a deadline is in the best interests of the public.
IT IS THEREFORE ORDERED that defendants' motion for a stay pending appeal be, and the same hereby is, DENIED.