matthew k. bishop western environmental law center · matthew k. bishop western environmental law...

Matthew K. BishopWestern Environmental Law Center103 Reeder’s AlleyHelena, MT 59601(406) 324-8011 (tel.)(406) 443-6305 (fax)[email protected]

John Mellgren, pro hac viceWestern Environmental Law Center1216 Lincoln StreetEugene, OR 97401(541) 359-0992 (tel.)(541) 485-2457 (fax)[email protected]

Counsel for Plaintiffs

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

FRIENDS OF THE WILD SWAN, a non-profit )organization; ROCKY MOUNTAIN WILD, a ) 9:13-cv-00057-DWMnon-profit organization; BIODIVERSITY )CONSERVATION ALLIANCE, a non-profit )organization; and SAN JUAN CITIZENS )ALLIANCE, a non-profit organization, ) MEMORANDUM OF

) LAW IN SUPPORT OFPlaintiffs, ) PLAINTIFFS’

) MOTION FOR vs. ) SUMMARY

) JUDGMENTDANIEL ASHE, in his official capacity as ) Director of the U.S. Fish and Wildlife Service, et )al. )

)Federal-Defendants. )

)

Case 9:13-cv-00057-DWM Document 19 Filed 01/17/14 of 39

mailto:[email protected]


TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii

LIST OF EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

A. The ESA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

B. Recovery planning under the ESA . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. The listing of lynx as a threatened species under the ESA . . . . . . . 5

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. The Service’s failure and refusal to prepare a recovery plan forlynx nearly fourteen years after the species was listed is anunreasonable delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. Fourteen years is unreasonable. . . . . . . . . . . . . . . . . . . . .. . 11

2. Congressional timetable . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3. Delay, in the context of ensuring the recovery of threatenedspecies, is less tolerable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

4. Higher priorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

5. The interests prejudiced by delay.. . . . . . . . . . . . . . . . . . . . . 24

6. Evidence of impropriety not required. . . . . . . . . . . . . . . . . . 25

i


B. This Court should compel the Service to prepare a recovery planfor lynx by a date certain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

CERTIFICATION OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

ii


TABLE OF AUTHORITIES

CASES

Alliance for the Wild Rockies (AWR) v. Lyder, 728 F. Supp. 2d 1126, 1129 (D. Mont. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 13

Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . .10, 15, 18, 20, 22, 25

CBD v. Norton, 304 F. Supp.2d 1174, 1079 (D. Ariz. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 28

Cutler v. Hayes, 818 F.2d 879, 898 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 131 (D.D.C. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Defenders of Wildlife v. Norton, 239 F. Supp.2d 9, 16 (D.D.C. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 6, 8

Gifford Pinchot Task Force v. USFWS, 378 F.3d 1059, 1070 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Hells Canyon Preservation Council v. Richmond, 841 F. Supp. 1039, 1048 (D. Or. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 19

Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 n.7 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 24, 26

In re American Rivers and Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 16, 26

In re Bluewater Network & Ocean Advocates, 234 F.3d 1305, 1316 (D.C. Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

iii


In re California Power Exchange Corp., 245 F.3d 1110, 1125 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

In re Core Communications, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

In re Int'l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . 11, 15, 16, 20, 24, 28, 29

In re United Mine Works of American Int. Union, 190 F.3d 545, 554 (D.C. Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 27, 28

Mashpee Wampanoag Tribal Council Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Nader v. F.C.C., 520 F.2d 182, 206 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

Northwest Ecosystem Alliance v. USFWS, 475 F.3d 1136, 1141 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

NRDC v. USDOI, 2001 WL 760519, *625 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 27

NWF v. NMFS, 422 F.3d 782, 793 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

ONRC v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 9

Potomac Electric Power Co. v. ICC, 702 F2d 1026, 1034 (D.C. Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

iv


Public Citizen Health Research Group v. Brock, 823 F.2d 626, 629 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22, 29

Sierra Club v. Lujan, 1993 WL 151353, *17 (W.D. Tex. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Sierra Club v. Marsh, 816 F.2d 1376, 1384 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Southwest Center for Biological Diversity v. Bartel, 470 F.Supp.2d 1118, 1136 (S.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

Telecommunications Research & Action v. FCC (TRAC), 750 F.2d 70, 77 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 10

TVA v. Hill, 437 U.S. 153, 179 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

Western Radio Services v. ESPY, 79 F.3d 896, 900-902 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

STATUTES

5 U.S.C. § 555(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

5 U.S.C. § 706(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

16 U.S.C. § 1532(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 2

16 U.S.C. § 1533(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

16 U.S.C. § 1533(a)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

v


16 U.S.C. § 1533(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 15, 26

16 U.S.C. § 1533(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 1, 3

16 U.S.C. § 1533 (f)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 20, 22

16 U.S.C. §§ 1533(f)(1)(B)(i) - (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

16 U.S.C. §§ 1533(f)(3),(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

16 U.S.C. § 1536(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

REGULATIONS

50 C.F.R. § 402.01(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 n. 3

59 Fed. Reg. 34272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17

65 Fed. Reg. 16052. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

65 Fed. Reg. at 16069-16070. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

74 Fed. Reg. 8616, 8616 (February 25, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 23

74 Fed. Reg. at 8637, 8643-8644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

78 Fed. Reg. 59430, 59443 (September 26, 2013) . . . . . . . . . . . . . . . . . . 7, 8, 21 n.7

vi


LIST OF EXHIBITS1

EXHIBIT A Declaration of Arlene Montgomery

EXHIBIT B Declaration of Paige Singer

EXHIBIT C Sixty-day notice letter (December 18, 2006)

EXHIBIT D Ruggiero, L.F. et al. 2000. Ecology and Conservation ofLynx in the United States. Univ. Press of Colorado,Boulder, CO. 480p. (excerpts from Chapter 8).

Plaintiffs’ Exhibits are properly before this Court. Exhibits A and B are1

submitted to demonstrate Plaintiffs satisfy the requirements for Article IIIstanding. Exhibit C is a document from the supplemental record that is beingsubmitted because it was not bate stamped. Exhibit D is a document the Partiesagreed should be included in the record.

vii


INTRODUCTION

Pursuant to Section 4(f)(1) of the Endangered Species Act (ESA), 16 U.S.C.

§ 1533(f)(1), the U.S. Fish and Wildlife Service (the Service) is directed to prepare

recovery plans for all listed species unless it determines such plans would not

promote the conservation of the species. Recovery plans are one of the most

important tools for ensuring the survival and recovery of listed species because

they are the “road map” to recovery, they lay out where the Service needs to go and

how best to get there. AR 384. Nearly fourteen years after the Canada lynx (lynx)2

was listed as a threatened species, however, the Service has yet prepare a recovery

plan. Nor has the Service determined that such a plan would not promote the

conservation of lynx.

Wherefore, Plaintiffs, a coalition of organizations dedicated to the survival

and recovery of lynx in the contiguous United States, are hereby compelled to bring

this civil action. Plaintiffs seek an order: (1) declaring the Service’s nearly

fourteen year delay in preparing a recovery plan for lynx to be an unreasonable

delay in violation of Section 4(f) of the ESA; and (2) compelling the Service to

prepare a recovery plan for lynx by a date certain.

Citations are to the administrative record (AR), supplemental2

administrative record (SAR), and Exhibits (Ex.).

1


BACKGROUND

A. The ESA.

The ESA is “the most comprehensive legislation for the preservation of

endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. 153, 179

(1978). The ESA was enacted to forestall the extinction of species and allow a

species to recover to the point where it may be de-listed. Gifford Pinchot Task

Force v. USFWS, 378 F.3d 1059, 1070 (9th Cir. 2004); see also 16 U.S.C. §

1532(3) (defining “conservation” as all methods that can be employed to “the point

at which measures provided pursuant to [the ESA] are no longer necessary”).

Survival and conservation (recovery) of listed species are the “two different

(though complimentary) goals of the ESA.” Id.

To achieve these goals, Section 4 of the ESA directs the Secretary of the

Interior to: (1) identify which species warrant listing, 16 U.S.C. § 1533(a); (2)

designate critical habitat for such species, 16 U.S.C. § 1533(a)(3)(A); and (3)

develop and implement recovery plans for such species, 16 U.S.C. § 1533(f). The3

ESA “contemplates orderly and timely progression” of Section 4 of the ESA’s

listing, critical habitat, and recovery planning obligations. Southwest Center for

The Secretary of the Interior has charged the Service with carrying out the3

ESA’s Section 4 obligations. 50 C.F.R. § 402.01(b).

2


Biological Diversity v. Bartel, 470 F.Supp.2d 1118, 1136 (S.D. Cal. 2006).

B. Recovery planning under the ESA.

Pursuant to Section 4(f) of the ESA, the Service “shall develop and

implement plans (hereinafter in this subsection referred to as ‘recovery plans’) for

the conservation and survival of endangered species and threatened species . . .

unless [the Service] finds that such a plan will not promote the conservation of the

species.” 16 U.S.C. § 1533(f)(1).

In preparing recovery plans, the Service is to give priority to those listed

species that “are most likely to benefit from such plans, particularly those species

that are, or may be, in conflict with construction or other development projects or

other forms of economic activity.” Id. at § 1533 (f)(1)(A). The Service must also

submit reports to Congress, every two years, on the status of its efforts and, prior to

final approval, provide an opportunity for public review and comment. Id. at §§

1533(f)(3),(4).

Recovery planning occurs in three phases. AR 391. First, is the pre-planning

phase whereby the Service prepares a “recovery outline.” AR 391. Outlines are

designed to provide interim strategies for recovering a species and lay out how and

3


by whom a recovery plan is to be developed. Id. Recovery outlines are designed4

to “get the ball rolling” for recovery planning and are to be completed within 60

days from the date of listing. AR 392. The “short time-frame allowed for

completion of the recovery outline is purposeful: it is meant to ensure that its

completion will not detract from the recovery planning” and “force biologists who

will be responsible for the writing of the recovery plan . . . to communicate with

each other and put preliminary strategies for recovering the species on paper as

soon as possible.” AR 392.

Second, is the actual writing of the plan, including solicitation and

incorporation of comments via peer review and public comment. AR 391.

According to the Service, final recovery plans “should be completed within 2.5

years of listing, unless an extension for a particularly complex plan has been

approved by the Headquarters Office.” AR 392. “In order to reach this time frame,

drafts should be completed within 1.5 years of listing.” Id.; see also SAR 196, 197

(same). In terms of content, each recovery plan must include:

• a description of the actions necessary to achieve the plan’sconservation goals;

Recovery teams are often used to write recovery plans. AR 405. The4

decision on whether or not to appoint a recovery team depends on the specificcircumstances of the species. Id.

4


• objective, measurable criteria which, when met, would result in adetermination that the species be removed from listing; and

• estimates of the time required and the cost to carry out those measuresneeded to achieve the plan’s goal and the intermediate steps towardsthat goal.

16 U.S.C. §§ 1533(f)(1)(B)(i) - (iii).

The Service explains that preparing recovery plans is extremely important

because they spell out the variety of actions needed to achieve recovery. AR 384.

Specifically, recovery plans delineate those aspects of the species’ biology, life

history, and threats that are pertinent to its endangerment and recovery, outline

necessary strategies and actions, and identify goals and criteria by which to

measure progress. AR 384. Recovery plans also serve a number of important

secondary functions. See id. (describing secondary functions).

The third and final phase is implementation of the recovery actions called for

in the recovery plan, monitoring of implementation and effectiveness of the

actions, and adaptation of the plan, as necessary. AR 392.

C. The listing of lynx as a threatened species under the ESA.

On March 24, 2000, the Service listed lynx in the contiguous United States a

threatened species under the ESA. 65 Fed. Reg. 16052. The lynx is a medium-

sized cat similar in appearance to a bobcat, though slightly larger. See SAR 110

5


(photo). Thanks to the lynx’s long legs, light bones, webbed toes, and super-sized

paws that spread its weight over snow, lynx are well-adapted for hunting and

surviving in areas that experience cold winters with deep, fluffy snow

conditions.74 Fed. Reg. 8616, 8616 (February 25, 2009).

Lynx are highly specialized predators of snowshoe hares which comprises

most of its diet. Id. Lynx are strongly associated with moist boreal forest stands –

comprised mainly of conifers (fir and spruce) – that experience cold, snowy

winters. Id. In the contiguous United States, boreal forest types transition into

subalpine forests in the west and deciduous temperate forests in the Northeast and

Great Lakes. Id.

Historically, lynx occurred in twenty-four states, including portions of the

Great Lakes region, the Northeast, and the western United States including most of

western Montana, northern Idaho, northern Washington, parts of Oregon, western

Wyoming, and Colorado. Ex. D at 244, 247 (maps). Today, lynx only occupy a

very small portion of their historic range and, but for recent reintroduction efforts,

would likely be extirpated from the Southern Rockies. AR 267. The overall

numbers and range of lynx in the contiguous United States has been “substantially

reduced” from historic levels. Defenders of Wildlife v. Norton, 239 F. Supp.2d 9,

16 (D.D.C. 2002).

6


Montana has the highest concentration of lynx in the lower 48, but today the

species is largely restricted to northwestern Montana, from the Purcell Mountains

south to Highway 200, except for a “few individuals” in the Greater Yellowstone

Area. AR 273. Current population estimates for lynx in Montana and the lower 48

remain unknown. The most viable population of lynx is in Montana’s Seeley Lake

area. SAR 68-69. But even there, preliminary analyses of population viability

suggest that lynx “may be declining.” Id.

Although inadequate regulatory protection was cited as the primary reason

for listing, the human alteration of forest abundance, composition, and connectivity

is the most influential factor affecting lynx. SAR 86. Lynx prefer mature forest

stands with high horizontal cover and generally avoids areas that have been logged.

SAR 219-130; SAR 85, 94-95; SAR 81; see also 74 Fed. Reg. at 8637, 8643-8644

(timber harvest, thinning, and fuels treatments adversely impact lynx habitat).

Additional threats to lynx include mortality from human activities (incidental

trapping or shooting), predation, starvation, and climate change. SAR 128; AR

285-287; AR 294-295.

Notably, when lynx were originally listed, the Service did not consider

climate change to be a threat, in large part because the science was “too uncertain

in nature.” 78 Fed. Reg. 59430, 59443 (September 26, 2013). Since that time, new

7


information and studies reveal that changes in our climate will substantially reduce

the amount and quality of lynx habitat. Id.; see also AR 285-287. Climate change

is now considered a significant threat to the long-term survival and recovery of

lynx. Id.

Obtaining protective ESA status for lynx has been a long and difficult road.

The March 24, 2000, listing required over a decade of administrative action and

judicial proceedings. See Defenders of Wildlife, 239 F.Supp. 2d at 14-17

(discussing history). The path to designating critical habitat for lynx was equally

“bumpy.” Alliance for the Wild Rockies (AWR) v. Lyder, 728 F. Supp. 2d 1126,

1129 (D. Mont. 2010). It took a civil action to compel the Service to initially

designate critical habitat, see Defenders of Wildlife, 239 F. Supp.2d at 26, and a

second round of litigation to ensure the designation was based on the best available

science, see AWR, 728 F. Supp. at 1129. The Service is still in the process of

finalizing a revised critical habitat rule. See 78 Fed. Reg. 59430.

Much like listing and critical habitat, the Service’s chosen path towards

recovery planning has been equally problematic. No work on recovery planning

occurred until September 14, 2005, when the Service issue a recovery outline for

lynx, nearly five and a half years after listing. SAR 074; AR 985. At the time, the

Service anticipated initiating recovery planning “in early 2007,” SAR 074, but this

8


never occurred. In fact, work on recovery planning abruptly ended after issuance

of the recovery outline. To date, nearly fourteen years after lynx were listed as

threatened species, the Service has yet to develop and implement a recovery plan

for lynx as required by Section 4(f) of the ESA. 16 U.S.C. § 1533(f). Nor has the

Service made a Section 4(f) finding that a recovery plan would not promote the

conservation of the species. See id.

STANDARD OF REVIEW

The ESA’s citizen suit provision does not provide a standard for judicial

review. ONRC v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007). The Administrative

Procedures Act’s (APA) general provisions for judicial review of agency actions

therefore apply. Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 481

(9th Cir. 2010). The APA requires administrative agencies to complete required

tasks “within a reasonable time” and empowers reviewing courts to “compel

agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §§ 555(b),

706(1); see also Telecommunications Research & Action v. FCC (TRAC), 750 F.2d

70, 77 (D.C. Cir. 1984) (the APA indicates a Congressional intent that agencies act

within reasonable time frames and that courts play an important role in compelling

agency action that is unreasonably delayed).

9


ARGUMENT

A. The Service’s failure and refusal to prepare a recovery plan for lynxnearly fourteen years after the species was listed is an unreasonabledelay.

To determine whether agency inaction amounts to an “unreasonable delay”

courts balance the following six TRAC factors: (1) the amount of time agencies

take to make decisions which must be governed by a rule of reason; (2) whether

Congress has provided a timetable or other indication of the speed with which it

expects the agency to proceed; (3) delays that might be reasonable in the sphere of

economic regulation are less tolerable when human health and welfare are at stake;

(4) the effect of expediting delayed action on higher or competing priorities; (5) the

nature and extent of the interests prejudiced by the delay; and (6) the recognition

that a court need not find any impropriety lurking behind agency lassitude in order

to hold that agency action is unreasonably delayed. Brower v. Evans, 257 F.3d

1058, 1068 (9th Cir. 2001) (citing Independence Mining Co. v. Babbitt, 105 F.3d

502, 507 n.7 (9th Cir. 1997) and TRAC, 750 F.2d at 80).

Application of the six TRAC factors to this case reveals the Service’s failure

and refusal to prepare a recovery plan for lynx nearly fourteen years after the

species was listed is unreasonable.

10


1. Fourteen years is unreasonable.

The amount of time agencies take to make decisions is the “most important”

factor in a TRAC analysis. In re Core Communications, Inc., 531 F.3d 849, 855

(D.C. Cir. 2008). “The ultimate issue” is whether the time the agency takes to act

satisfies the rule of reason. Mashpee Wampanoag Tribal Council Inc. v. Norton,

336 F.3d 1094, 1102 (D.C. Cir. 2003). “Although there is no per se rule as to how

long is too long, ‘inordinate agency delay would frustrate congressional intent by

forcing a breakdown of regulatory processes.’” In re Int'l Chem. Workers Union,

958 F.2d 1144, 1149 (D.C. Cir. 1992) (citation omitted). The reasonableness of

time for agency action is typically measured in months, occasionally a year or two

but not several years or a decade. In re American Rivers and Idaho Rivers United,

372 F.3d 413, 419 (D.C. Cir. 2004) (citations omitted).

Here, nearly fourteen years after lynx were listed as a threatened species

under the ESA, the Service has yet to prepare a recovery plan for the imperiled cat.

In the preamble to the listing rule, the Service recognized the ESA’s requirement to

“develop and implement a species recovery plan” but failed to mention or

otherwise commit to a time line. 65 Fed. Reg. at 16069-16070. For the next five

years no work on recovery planning was undertaken.

On September 14, 2005, the Service took the initial, first step by preparing a

11


recovery outline. AR 985. As mentioned earlier, recovery outlines provide interim

strategies and goals during the planning process. AR 392. In the outline, the

Service states that it intends to “begin formal recovery planning for the lynx in

early 2007, after the final lynx critical habitat designation is complete (due

November 2006).” AR 998; see also SAR 074 (same). The Service also states that

it anticipates “a draft recovery plan would be available for public review in January

2008.” Id. This never occurred.

In 2006, conservation organizations sent the Service a formal sixty-day

notice of intent to sue letter for failing to prepare recovery plan which, at the time,

was already six years overdue. Ex. C. The Service never responded. By September

11, 2007, there was no recovery team for lynx, no other group working on the

recovery of lynx, and no recovery plan “under development/revision.” AR 694. An

additional two and half years went by with no work or progress being made on

recovery planning.

On February 9, 2010, the Service chose to go back and revise the old

recovery outline for lynx instead of moving forward on recovery planning. AR 492.

This decision runs counter to the Service’s own guidance which explicitly states

that outlines are “not meant in any way to detract from the recovery planning

process; it should not become a de facto recovery plan, nor should it deter efforts to

12


expedite the recovery planning process.” AR 416. In the revised outline, the

Service stated it intends to “begin formal recovery planning for lynx in early 2011”

and release a draft recovery plan for public review in January 2012. AR 507.

Based on this time-frame, the Service said a “final recovery plan would be

available in June 2012,” though this date “may be” affected by litigation on the

lynx’s listing status. Id. In the end, the Service never initiated recovery planning

for lynx in 2011 and never released a draft recovery plan in 2012.

In fact, beyond revising the recovery outline in 2010, no additional work on

recovery planning has occurred. Evidence in the record reveals the effort abruptly

ended in response to this Court’s July 28, 2010, order in AWR, 728 F. Supp.2d at

1145, directing the Service to revise the critical habitat rule for lynx. The Service

used this Court’s order in AWR as a bargaining chip: it would only commit to

prepare a recovery plan in exchange for the plaintiffs in AWR agreeing to let the

Service forgo or delay redoing critical habitat. See AR 355 (“we are proposing to

begin recovery planning efforts in lieu of another round of critical habitat

designations . . .”); AR 366 (same); AR 364 (same). In the Service’s own words:

“winning has a price.” AR 353. Since the Service was ordered to redo critical

habitat for lynx, “recovery planning would be postponed indefinitely due to that

necessity.” AR 354 (emphasis added).

13


In other words, even though this Court explicitly directed the Service in

AWR to redo the lynx critical habitat rule and even though recovery planning for

lynx was already ten years overdue, the Service would not commit to recovery

planning unless and until the plaintiffs in AWR bargained on critical habitat.

Apparently, negotiations in AWR fell apart and, as a result, recovery planning for

lynx was “postponed indefinitely.” AR 354.

In January 2013, Plaintiffs in this case sent a notice letter informing the

Service, once again, of its failure to comply with its duty to prepare a recovery plan

for lynx. AR 200. In response, the Service stated it will prepare a recovery plan for

lynx “as soon as resources allow” and “anticipates initiating recovery planning for

lynx after submitting the final critical habitat rule to the Federal Register by

September 30, 2014, unless we are prevented from doing so by additional

litigation.” AR 203-204. In other words, work on recovery planning will only

occur if the Service has time and funding and only if no further legal challenges are

pursued. Id.

In May 2013, the Service changed its mind. See AR 345. Instead of

committing to undertake recovery planning later this year, the Service will finalize

the five-year status review for lynx (which began back in 2007) before initiating

recovery planning and only begin recovery planning “if the review determines that

14


the species still requires protection under the [ESA].” AR 345.

In sum, after nearly fourteen years of postponement and delay, the Service

continues to drag its feet. “There is a point when the court must ‘let the agency

know, in no uncertain terms, that enough is enough.’” In re Int’l Chemical

Workers, 958 F.2d at 1150 (citation omitted). “At some point, promises are no

longer enough, and we must end the game of ‘administrative keep-away.’” In re

Core Communications Inc., 531 F.3d at 859. This is precisely the situation in this

case.

2. Congressional timetable.

The second TRAC factor is whether Congress provided a timetable or other

indication of the speed with which it expects the agency to proceed. Brower, 257

F.3d at 1068 (citation omitted). The “statutory scheme may supply content for this

rule of reason.” Id. Inordinate agency delay cannot be allowed to frustrate

congressional intent. In re Int’l Chemical Workers, 958 F.2d at 1149 (citation

omitted).

Section 4(f) of the ESA directs the Service to prepare a recovery plan but

does not include a firm deadline for completion. 16 U.S.C. § 1533(f). This

suggests Congress was willing to give the Service some flexibility and discretion

when it came to recovery planning. But such flexibility and discretion is not

15


absolute or unlimited. Congress recognized the importance of recovery planning

and chose to make the duty explicit and mandatory in the ESA. It logically

follows, therefore, that the directive cannot be “postponed indefinitely” due to

budget limitations, political interference, litigation, or other impediments.

The ESA, by its very nature, is an urgent statute whose purpose is to “halt

and reverse the trend towards species extinction, whatever the cost.” TVA, 437 U.S.

at 184. “This is reflected not only in the stated policies of the Act, but in literally

every section of the statute.” Id.; see also In re American Rivers, 372 F.3d at 420

(six year delay was unreasonable, in part, because of the ESA’s purpose). The

Service, along with all other federal agencies, are to “utilize their authorities in

furtherance of the purposes of [the ESA] by carrying out programs for the

conservation” of listed species. 16 U.S.C. § 1536(a)(1). Preparing recovery plans

specifically designed to ensure the conservation (survival and recovery of a

species) in a timely manner comports with that purpose. See In re Int’l Chemical

Workers, 958 F.2d at 1149 (“the reasonableness of the delay must be judged ‘in the

context of the statute’ which authorizes the agency’s action”).

Recognizing the importance of timely recovery planning (even in the

absence of a firm deadline), the Service published guidance which sheds light on

what is a reasonable time-frame for completing recovery planning. See SAR 196

16


(59 Fed. Reg. 34272). Recovery plans for all listed species are to be completed

“within 2 ½ years after final listing.” Id.; see also SAR 197 (same). This

commitment is reiterated in the Agency’s most recent guidance document,

Endangered and Threatened Species Recovery Planning Guidance (updated June,

2010), where the Agency discusses the importance of recovery plans and outlines

the following time-frames for all listed species:

• Recovery outline submitted to Regional Office – 60 days from listing

• Recovery outline approved – 90 days from listing

• Draft recovery plan for public and peer review – 18 months from listing

• Final recovery plan – 2.5 years (30 months) from listing

AR 392. 5

While these internal policies are not binding on the Service, Western Radio

Services v. ESPY, 79 F.3d 896, 900-902 (9th Cir. 1996), they do “constitute a body

of experience and informed judgment to which courts and litigants may properly

resort for guidance.” Northwest Ecosystem Alliance v. USFWS, 475 F.3d 1136,

1141 (9th Cir. 2007) (citation omitted).

The Society for Conservation Biology, an organization of professionals5

dedicated to advancing the science and practice of conservation, recommendsrecovery planning take no more than “three and four years to complete for aspecies.” SAR 046; see also SAR 044 (outlining proposal).

17


3. Delay, in the context of ensuring the recovery of threatenedspecies, is less tolerable.

The third TRAC factor notes that delays, that might be reasonable in the

sphere of economic regulation, are less tolerable when human health and welfare

are at stake. Brower, 257 F.3d at 1068 (citation omitted). This matter does not

involve economic regulation and does not (directly) implicate human health and

welfare issues. It does, however, involve environmental injury: the Service’s

failure to prepare a recovery plan for a threatened species as required by the ESA.

This failure has been, and continues to be, an impediment to lynx

conservation and eventual de-listing. According to the Service,“without a plan to

organize, coordinate and prioritize the many possible recovery actions, the effort

may be inefficient or even ineffective.” AR 384. The prompt development and

implementation of recovery plans “ensures that recovery efforts target limited

resources effectively and efficiently into the future.” Id. They are a “road map for

species recovery – [they] lay[] out where [the Service] needs to go and how best to

get there.” Id.; see also Defenders of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 131

(D.D.C. 2001) (A recovery plan is “supposed to be a basic road map to recovery,

i.e., the process that stops or reverses the decline of a species and neutralizes

threats to its existence.”) (citations omitted).

18


For these reasons, the Service considers the development and

implementation of recovery plans to be “one of the most important tools” to ensure

sound decision making throughout the recovery process. AR 384 (emphasis

added); see also SAR 188 (recovery plans play a “critical role in endangered

species management”); SAR 182-183 (same). “Increasingly, recovery plans are the

fundamental tool the [Service] uses to protect endangered species [].” Sierra Club

v. Lujan, 1993 WL 151353, *17 (W.D. Tex. 1993). “Timely development and

implementation of recovery plans is critical to many specific recovery actions,

including designing and funding required studies and securing cooperation from

other federal, state, regional, and local governmental and private entities.” Id.

The Service’s nearly fourteen year delay is keeping this important work from

moving forward. This type of environmental harm is certainly less tolerable than

delay that might be reasonable in the sphere of economic regulation. See In re

Bluewater Network & Ocean Advocates, 234 F.3d 1305, 1316 (D.C. Cir. 2000)

(mandamus appropriate where “delayed regulations implicate important

environmental concerns”); Hells Canyon Preservation Council v. Richmond, 841 F.

Supp. 1039, 1048 (D. Or. 1993) (although no threat to human health, delayed

regulation threatens environmental injury which is often irreversible).

19


4. Higher priorities.

The fourth TRAC factor considers the effect of expediting delayed action on

agency activities of a higher or competing priority. Brower, 257 F.3d at 1068

(citations omitted). While higher priorities can justify agency delays, Cutler v.

Hayes, 818 F.2d 879, 898 (D.C. Cir. 1987), any asserted justifications for the delay

“become less persuasive the longer the delay continues,” In re Int’l Chemical

Workers Union, 958 F.2d at 1150.

In the ESA, Congress directed the Service to give priority to those listed

species that are most likely to benefit from a recovery plan, particularly those

species that may be in conflict with various forms of economic activity. 16 U.S.C. §

1533(f)(1)(A). In response, the Service adopted guidance for how to prioritize both

listing decisions and recovery planning. AR 190. Under the guidance, species are

ranked on a scale of 1C to 18 with 1C being the highest priority for recovery

planning and 18 being the lowest. AR 203. Factors include the potential for

success, the degree of threat, and potential for conflict with economic activity. AR

195-196.

Notably, the Service’s guidance does not treat species as if they are “in line”

for recovery plans – that is, recovery plans are not prepared directly in order of the

species’ recovery numbers. AR 195-196. And, as the Service concedes, it does not

20


always follow its own priority guidance. See Policy Guidelines for Planning and

Coordinating Recovery of Endangered and Threatened Species (May, 1990). The6

Service must “be flexible enough to take advantage of special opportunities

provided by shifting social, political, or economic circumstances.” Id. at 5. The

Service’s priority system, therefore, serves merely as a guide “rather than a mold to

which all actions must conform.” Id.

For this reason, it is disingenuous for the Service to argue – as it did in

response to Plaintiffs’ sixty-day notice letter (AR 203) – that it must complete

overdue recovery plans for other species before completing a recovery plan for

lynx (recovery priority number of 15). Indeed, according to the Service’s own7

guidance, all species – regardless of priority number – are to have “recovery plans

within 2 ½ years after final listing.” SAR 196; AR 392 (same). This is why the

Service has and continues to recognize recovery planning for lynx is long overdue

and needs to be completed in a timely manner. See AR 998 (will initiate in 2007);

AR 507 (will initiate in 2011); AR 204 (will initiate by close of 2014).

A copy of this document is available at:6

http://training.fws.gov/CSP/Resources/ES_Listing_and_Candidate_Assessment/ESA_Folder/90guide.pdf (last visited on January 4, 2014).

When the Service assigned lynx a priority number of 15, it did not consider7

climate change to be a threat to the species because the science was “too uncertainin nature.” 78 Fed. Reg. at 59443. This is no longer the case. Id.

21


In response to the Plaintiffs’ sixty-day notice, the Service suggested it could

initiate recovery planning by the close of 2014. AR 345. This fact alone is

convincing evidence that directing the Service to adhere to a time-frame for

completion of recovery planning – as requested in this case – will not impair its

abilities to meet other deadlines. See Public Citizen Health Research Group v.

Brock, 823 F.2d 626, 629 (D.C. Cir. 1987) (ordering agency to adhere to own

schedule).

Moreover, the Service’s decision to assign lynx a low recovery priority

number does not relieve the Agency of its mandatory duty to prepare a plan under

the ESA or otherwise justify a nearly fourteen year delay. See NRDC v. USDOI,

2001 WL 760519, *625 (9th Cir. 2001) (Pregerson, J. dissenting) (Service cannot

use guidance to indefinitely postpone compliance with mandatory duty); Brower,

257 F.3d at 1070 (completion of other studies does not relieve agency from

progressing with clearly mandated studies). This is especially true in this case,

where the Service’s failure to prepare a recovery plan had more to do with

prioritizing work on other activities than prioritizing work on recovery plans for

other species as contemplated by the ESA and 1983 guidance. See 16 U.S.C. §

1533 (f)(1)(A) (Service to prioritize work on species); AR195-196; see also NRDC,

2001 WL 760519 at *625 (Pregerson, J. dissenting) (recognizing the difference

22


between prioritizing work on species and prioritizing work on activities).

From March 2000 to 2005, for example, the lack of work on recovery

planning likely had more to do with political interference than higher priorities. See

AR 697-698 (describing Julie MacDonald’s influence over lynx); SAR 007

(describing Julie MacDonald’s influence in setting back recovery activities). In

2005, the Service said designating critical habitat for lynx was a higher priority

than recovery planning. AR 998. Five years later, and after issuing a revised

critical habitat rule (74 Fed. Reg. 8616), the Service made revising the old lynx

recovery outline a higher priority than working on recovery planning, even though

the Agency’s own guidance recommends against doing so. See AR 416.

In 2010, the Service made “ongoing litigation over the listing” a priority over

recovery planning. AR 507. In 2011, the Service finally committed to begin

recovery planning but, as mentioned earlier, only in exchange for the plaintiffs in

AWR agreeing to forgo or postpone redoing lynx critical habitat. See AR 366; AR

355. During this time period, recovery planning was “postponed indefinitely.” AR

354. So too was completion of a five-year status review for lynx. AR 352. Neither

the five-year status review or recovery planning was high on the Agency’s priority

list given “the wolverine and lynx [critical habitat] workload.” AR 352. Now,

however, the Service is making the five-year review its top priority. AR 345.

23


In sum, the need to complete recovery plans for other species might be a

valid excuse for delay over the course of a year or two. Choosing to work on other

activities for the same species over a fourteen year period, however, is not. This is

especially true when the Service’s “priorities” often shift and change. At first it

was political interference, then it was critical habitat, then litigation on the listing

rule, then a revised critical habitat rule, and now the five-year status review.

Unless this Court “insist[s] on a deadline now, some new impediment will be

pleaded five months hence.” In re Int’l Chemical Workers Union, 958 F.2d at 1150.

“[E]nough is enough.” Id.

“However many priorities the agency may have, and however modest its

personnel and budgetary resources may be, there is a limit to how long it may use

these justifications to excuse inaction in the face of the congressional command to

act . . .” In re United Mine Works of American Int. Union, 190 F.3d 545, 554 (D.C.

Cir. 1999).

5. The interests prejudiced by delay.

The fifth TRAC factor, which takes into account the nature and extent of the

interests prejudiced by the delay, overlaps with the third factor. Independence

Mining Co., 105 F.3d at 509. As mentioned earlier, see supra Section A.3., the

importance of recovery planning cannot be overstated and the Service’s nearly

24


fourteen year delay has and continues to be an impediment to lynx recovery. AR

384. The Service’s nearly fourteen year delay also undermines the ESA’s statutory

scheme, see supra Section A.2, and the public’s confidence in the Agency’s ability

to carry out its responsibilities. See Potomac Electric Power Co. v. ICC, 702 F2d

1026, 1034 (D.C. Cir. 1983).

As explained by the Service’s Maine Field Office following a series of

public meetings on lynx: “there was considerable questioning and discussion about

why we do not have a Canada lynx recovery plan. The public (and states and [the

Service]) needs clear goals and criteria to know what is needed to recover this

species. [The state agency] has repeatedly asked us if/when we may start work on a

recovery plan.” AR 350. “The need for a recovery plan is critical. We are all short

for time, but it is difficult explaining to the public why we don’t have a plan 11

years after the species was listed.” Id. (emphasis added). The Maine Field Office

recommended finding funding for “an outside contractor to develop a draft

[recovery] plan” for lynx but apparently this never occurred. AR 349.

6. Evidence of impropriety not required.

The sixth TRAC factor is pertains to whether any impropriety or bad faith is

“lurking behind” the Service’s lassitude. Brower, 257 F.3d at 1068 (citation

omitted). Such impropriety or bad faith is not required in order to hold that agency

25


action is unreasonably delayed but if found the “agency will have a hard time

claiming legitimacy for its priorities.” Independence Mining, 105 F.3d at 510.

Plaintiffs are not alleging any impropriety or bad faith in this case.

In sum, based on application of the six TRAC factors, this Court should

declare the Service’s failure and refusal to prepare a recovery plan for lynx nearly

fourteen years after the species was first listed to be unreasonable and a violation of

Section 4(f) of the ESA, 16 U.S.C. § 1533(f). Fourteen years exceeds the amount

of time almost any court considers reasonable. See In re California Power

Exchange Corp., 245 F.3d 1110, 1125 (9th Cir. 2001) (in contrast to a delay of four

months, delays of years are often deemed unreasonable—citing cases involving

unreasonable delays of four, eight, and ten years); In re American Rivers, 372 F.3d

at 419 (six-year delay is “nothing less than egregious”); Nader v. F.C.C., 520 F.2d

182, 206 (D.C. Cir. 1975) (nine years should be enough time for any agency to

decide almost any issue).

26


B. This Court should compel the Service to prepare a recovery plan forlynx by a date certain.

In addition to declaratory relief, this Court should issue an order compelling

the Service to prepare recovery plan by a date certain. While the six TRAC factors

outlined above are a useful tool in deciding the merits, i.e., whether agency action

is “unreasonably delayed,” they are of less utility when evaluating whether to grant

injunctive relief in ESA cases. NRDC, 2001 WL 760519 at *12 (Pregerson J.,

dissenting).

As explained by the Ninth Circuit, taking into account outside factors, such

as the traditional balancing of the parties’ competing interests, NWF v. NMFS, 422

F.3d 782, 793 (9th Cir. 2005), or the TRAC factors, NRDC, 2001 WL 760519 at

*12 (Pregerson J., dissenting), is not appropriate in cases involving a violation of

the ESA. “In cases involving the ESA, Congress removed from the courts their

traditional equitable discretion in injunction proceedings of balancing the parties’

competing interests.” NWF, 422 F.3d at 793. Congress has already determined that

the balance of hardships always tips sharply in favor of listed species, Marbled

Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996), and there is a strong

public interest in affording threatened species the highest level of protection, NWF,

422 F.3d at 793.

27


As such, if plaintiffs demonstrate a procedural or substantive violation of the

ESA – as they have in this case – then, absent unusual circumstances, they are

entitled to injunctive relief. Sierra Club v. Marsh, 816 F.2d 1376, 1384 (9th Cir.

1987); Marbled Murrelet, 83 F.3d at 1073. Any purported lack of funding,

including budgetary and staff limitations, is not a valid excuse for non-compliance.

CBD v. Norton, 304 F. Supp.2d 1174, 1079 (D. Ariz. 2003). The solution of being

“over-obligated and under-funded rests with Congress, and not with the Court.” Id.

If this Court does not insist on a reasonable, but firm deadline for completion of a

recovery plan for lynx, the Service – just as it has done for the last fourteen years

–will continue to drag its feet and plead some new impediment. See In re Int’l

Chemical Workers, 958 F.2d at 1150 (“we have grave concern that if we do not

insist on a deadline now, some new impediment will be pleaded . . .”).

In 2014, the Service intends to complete recovery plans for 1,100 species.

See Budget Justifications: Fiscal Year 2014 at ES-19. Given the volume of8

recovery plans the Service anticipates being able to handle in the course of this

year, an order compelling completion of one long-overdue recovery plan would not

A copy of this document is available at:8

www.fws.gov/budget/2014/FWS%202014%20Budget%20Justifications.pdf (lastvisited January 14, 2014).

28


seem overly burdensome.

Plaintiffs propose a time-frame that closely tracks the Service’s own time-

frame in the record. See In re Int’l Chemical Workers, 958 F.2d at 1150 (ordering

agency to adhere to its own schedule); Brock, 823 F.2d at 629 (same). Under this

time-frame, the Service would: (1) provide notice and initiate recovery planning by

the close of 2014; and (2) issue and implement a final recovery plan one year later,

by the close of 2015. See AR 204; AR 347; AR 357. In the alternative, Plaintiffs

respectfully request this Court order the Parties to meet and confer within one

month of issuing an order in this matter to come to an agreement on a reasonable,

but firm deadline for completion of recovery planning.

CONCLUSION

Wherefore, Plaintiffs respectfully request this Court: (1) declare the

Service’s nearly fourteen year delay in preparing a recovery plan for lynx to be an

unreasonable delay in violation of Section 4(f) of the ESA; and (2) compel the

Service to develop and implement a recovery plan for lynx by a date certain.

Respectfully submitted this 17th day of January, 2014.

/s/ Matthew K. Bishop Matthew K. BishopWestern Environmental Law Center103 Reeder’s AlleyHelena, MT 59601

29


(406) 324-8011 (tel.)(406) 443-6305 (fax)[email protected]

/s/ John MellgrenJohn Mellgren, pro hac viceWestern Environmental Law Center1216 Lincoln StreetEugene, OR 97401(541) 359-0992 (tel.)(541) 485-2457 (fax)[email protected]

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on this 17 day of January, 2014, I filed a copy of thisth

document (along with Plaintiffs’ motion, statement of facts, and exhibits)

electronically through the CM/ECF system, which caused all counsel to be served

by electronic means, as more fully reflected on the Notice of Electronic Filing.

/s/ Matthew K. Bishop Matthew K. Bishop

30




CERTIFICATE OF COMPLIANCE

I, the undersigned counsel of record, hereby certify that this brief is

proportionally spaced, has a typeface of 14 points or more, and

contains 6,465 words. I relied on Corel Word Perfect 12 to obtain the word

count.

/s/ Matthew K. Bishop Matthew K. Bishop

31


matthew k. bishop western environmental law center · matthew k. bishop western environmental law...

Documents