The following is an update on Judge Illston's ruling, our attorney's advice regarding pursuing an appeal, and the line of reasoning behind our actions.
As you may recall, initially we were not going to appeal Judge Illston's decision (Northern California District Court) because it looked like such a long-shot. She had found so many defects in the Biological Opinion (BO), Environmental Impact Statement (EIS), and Critical Habitat Designation, that getting the 9th Circuit to overrule her would be like throwing 12 innings of no-hit baseball.
However, this last November much to our surprise, the federal agencies (Bureau of Land Management (BLM) and Fish and Wildlife Service (FWS)) did file an appeal. To maintain our legal standing and have the opportunity to appear before the court, we jumped into the fray and filed one, too. Blue Ribbon Coalition (BRC) did the same. We felt that if the feds thought they could win, we would join them and provide whatever help we could. Soon after, all the appeals were consolidated and we got a briefing schedule from the 9th Circuit.
In February, though, BLM and FWS started to get cold feet and made rumblings they might withdraw. We told them that we wanted to continue with it and urged them to do the same. Without them to defend their own documents and decisions, there was very little we could do to convince the 9th Circuit to overrule Judge Illston.
Then, on April 26, 2007 -- the day before their opening brief was due -- the feds filed a formal dismissal of their appeal. In so doing, BLM and FWS formally accepted Judge Illston's ruling and will be redrafting the BO, EIS, and Critical Habitat Designations consistent with her Order of March 14, 2006.
Essentially, the feds' withdrawal of the appeal takes the entire matter out of the jurisdictional reach of the Ninth Circuit court. From the Court's perspective, if the agencies responsible for preparing the BO, EIS, and Critical Habitat Designations agree that the documents are defective and further agree to redo them, there is no reason to waste judicial resources to resolve debates over the old documents. In effect, the case becomes moot.
Moreover, even if mootness were not a problem, there is virtually no chance that the Court would rule in our favor without the federal agencies there to defend their own decisions and documents.
In light of these events, our attorney Dave Hubbard spoke to Paul Turcke, counsel for BRC, and asked his opinion about continuing with the appeal. He agreed that it was a waste of time and money if BLM and FWS were not involved. Five days ago, BRC filed papers formally dismissing its appeal.
Therefore, now we are the only party on the appellate side. Everyone else has left the field of play.
Mr. Hubbard advises that given the turn of events described above, there is no rational reason to continue with the appeal. We would expend valuable and limited resources and get nothing in return. After lengthy discussion, and considering any possible avenue to continue this portion of our litigation strategy, the ASA Board of Directors has decided unanimously to accept his recommendation that we dismiss our appeal.
Directecting our efforts at assisting the BLM and FWS in developing balanced and legally defensible documents for the new RAMP is our best course of action in this case. It is our goal to encourage BLM and FWS to conclude revising these documents in an expeditious manner and without delay. We will continue to evaluate our legal options in this important matter.
Questions and comments can be sent to: asaboard@americansandassociation.org