On March 28th the ASA Board of Directors moved to file a Notice of Intent to Sue the USFWS for lack of providing a 12 month ruling on the PMV Delisting Petition.
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Full Version: Notice Of Intent To Sue
right the eff* on!!!!!!!
i so hate that it had to come to this. too bad there was no other way.
i so hate that it had to come to this. too bad there was no other way.
good idea
ooops that didn't work
Finally.. Wish we were in this position oh say 5 years ago.. ??
Be anxious to see how this is handled..
Be anxious to see how this is handled..
here is the best I can do so far....
[b]
GATZKE DILLON [/b]& BALLANCE LLP
ATTORNEYS & COUNSELORS AT LAW
EMERALD LAKE CORPORATE CENTRE
1525 FARADAY AVENUE, SUITE ISO OF COUNSEL
CARLSBAD, CALIFORNIA 92008 MICHAEL SCOTT GATZKE
TELEPHONE 760.431.9601 ANTHONY T. DITTY
FACSIMILE 760.431.9512
April 8, 2008
By Overnight Mail
H. Dale Hall, Director
U.S. Fish and Wildlife Service
1849 C StreetN.W.
Washington D.C. 20240
Secretary Dirk Kempthorne
U.S. Department of Interior
1849 C StreetN.W.
Washington D.C. 20240
Secretary Carlos M. Outierrez
U.S. Department of Commerce
1401 Constitution Avenue, NW
Washington, DC 20230
Re: Notice of Intent to Sue for Violations of the Endangered Species Act in Connection with the US. Fish and Wildlife Service Failure to Publish Twelve- Month Determination on the Delisting of the Peirson’s milk-v etch
On behalf of The American Sand Association, the San Diego Off-Road Coalition, The Off-Road Business Association, the California Off-Road Vehicle Association and the American Motorcycle Association District 37 (collectively, “ ASA et al.), this letter serves to notify the U.S. Fish and Wildlife Service (“Service”), the Secretary of the Interior, and the Secretary of Commerce of their intention to file a civil action for violation of the Endangered Species Act (“ESA”). Specifically, the Service and the Secretaries of the Interior and Commerce violated section 4 of the ESA, 16 U.S.C. § 1533, and its implementing regulations, by failing to issue a 12-month finding regarding ASA et al. ‘s petition to request delisting of the Peirson’s milk-vetch. The citizen suit provision of the ESA requires notice be given to the Secretary and any alleged violator of a party’s intent to file suit sixty days prior to the initiation of a civil action under ESA section 4. 16 U.S.C. §1540(g)(2)(A). This letter fulfills that 60-day notice requirement.
GATZKE DILLON & BALLANCE LLP
U.S. Fish and Wildlife Service, et al.
Notice of Intent to Sue
April 8, 2008
Page 2
I. THE ENDANGERED SPECIES ACT
Congress enacted the ESA to ensure the protection and conservation of threatened and endangered species. 16 U.S.C. §1531(b). To achieve this purpose, the statute requires that the Service review the ‘best scientific and commercial data available” in order to make determinations about the status and listing of a species. 16 U.S.C. §1533(b)(1), 1533(a)(2)(B)- ©. The statute also allows species to be removed from the federal list when they no longer require special protection, thus allowing federal resources to be spent on efforts to safeguard and recover species that are at greater risk. Upon receiving a petition to delist a species, the Service has approximately 90 days to make a finding as to whether the petition “presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. §1533(b)(3)(A); 50 C.F.R. §424.14(b)(1). Twelve months after receipt of the petition to delist, the Service must determine whether: (1) listing is not warranted; (2) listing is warranted; or (3) listing is warranted but presently precluded by other pending proposals for listing species, provided other circumstances are met. 16 U.S.C. §l533(b)(3)(B). If the Service determines that listing of the species is not warranted or that a species should be delisted, it “shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.” 16 U.S.C. §1533(b)(3)(B). See also, Center for Biological Diversity v. Norton, 254 F.3d 833, 840 (9th Cir. 2001) (“In order to ‘force action on listing and delisting proposals,’ . . .Congress amended the ESA’s petition process expressly to provide certain mandatory deadlines by which the Secretary must act on a petition.”).
II. VIOLATION OF THE ENDANGERED SPECIES ACT
On June 30, 2005, ASA et al. submitted a formal petition to remove the Peirson’s milkvetch (Astragalus magdalenae var. peirsonii) from the federal list of threatened and endangered species, pursuant to Section 4(b)(3) of the Endangered Species Act (16 U.S.C. § 1533(b)(3)) and Title 5, Section 553(e) of Administrative Procedures Act. The petition provided detailed scientific data supporting the determination that Peirson’s milk-vetch has a stable, viable population that is not threatened with extinction, including evidence that: (1) the Peirson’ s milkvetch has a large seed bank containing as many as 5.6 million seeds, (2) the above-ground expression of Peirson’s milk-vetch fluctuates according to climate conditions, and (3) during rainy years such as 2001 and 2004, the Peirson’s milk-vetch will germinate profusely, producing as many as 286,000 plants.
In response, the Service concluded that the petition contained scientific data sufficient to warrant further review, and published a 90-day finding on November 30, 2005 to that effect. 70 Fed.Reg. 71795-71799 (November 30, 2005). The subsequent twelve-month finding was due in July 2006. 16 U.S.C. §l533(b)(3)(B). Pursuant to communications with the Service, ASA et al. agreed to extend the twelve month finding deadline to October 2006.
GATZKE DILLON & BALLANCE LLP
U.S. Fish and Wildlife Service, et al.
Notice of Intent to Sue
April 8, 2008
Page 3
As of April 2008, the twelve month finding has still not been published, and is now 18- months delinquent in light of the extended deadline of October 2006. Therefore, the Service is currently in violation of the ESA, 16 U.S.C. § 1533. Accordingly, we request that the Service immediately remedy its ESA violation by promptly publishing the twelve-month finding on the potential delisting of the Peirson’ s milk-vetch.
Pursuant to the citizen suit provision of the ESA, the Secretary’s failure to meet the requirements of section 4 is a non-discretionary act or duty as defined by section 11(g). 16
U.S.C. §1533(g)(1)©. If the Service does not initiate consultation before the end of this 60-day notice period, ASA et al. intends to file a civil action to correct this violation, seeking injunctive and declaratory relief, as well as legal fees and cost regarding these violations. ASA et al. may be contacted through their counsel at the following address:
David Hubbard
Gatzke Dillon & Ballance LLP
1525 Faraday Avenue, Suite 150
Carlsbad, California 92008
Please contact us if you have any questions or wish to discuss this matter further. Very truly yours,
,Li9A 1-P
David P. Hubbard of
Gatzke Dillon & Ballance LLP
DPH/rlf
[b]
GATZKE DILLON [/b]& BALLANCE LLP
ATTORNEYS & COUNSELORS AT LAW
EMERALD LAKE CORPORATE CENTRE
1525 FARADAY AVENUE, SUITE ISO OF COUNSEL
CARLSBAD, CALIFORNIA 92008 MICHAEL SCOTT GATZKE
TELEPHONE 760.431.9601 ANTHONY T. DITTY
FACSIMILE 760.431.9512
April 8, 2008
By Overnight Mail
H. Dale Hall, Director
U.S. Fish and Wildlife Service
1849 C StreetN.W.
Washington D.C. 20240
Secretary Dirk Kempthorne
U.S. Department of Interior
1849 C StreetN.W.
Washington D.C. 20240
Secretary Carlos M. Outierrez
U.S. Department of Commerce
1401 Constitution Avenue, NW
Washington, DC 20230
Re: Notice of Intent to Sue for Violations of the Endangered Species Act in Connection with the US. Fish and Wildlife Service Failure to Publish Twelve- Month Determination on the Delisting of the Peirson’s milk-v etch
On behalf of The American Sand Association, the San Diego Off-Road Coalition, The Off-Road Business Association, the California Off-Road Vehicle Association and the American Motorcycle Association District 37 (collectively, “ ASA et al.), this letter serves to notify the U.S. Fish and Wildlife Service (“Service”), the Secretary of the Interior, and the Secretary of Commerce of their intention to file a civil action for violation of the Endangered Species Act (“ESA”). Specifically, the Service and the Secretaries of the Interior and Commerce violated section 4 of the ESA, 16 U.S.C. § 1533, and its implementing regulations, by failing to issue a 12-month finding regarding ASA et al. ‘s petition to request delisting of the Peirson’s milk-vetch. The citizen suit provision of the ESA requires notice be given to the Secretary and any alleged violator of a party’s intent to file suit sixty days prior to the initiation of a civil action under ESA section 4. 16 U.S.C. §1540(g)(2)(A). This letter fulfills that 60-day notice requirement.
GATZKE DILLON & BALLANCE LLP
U.S. Fish and Wildlife Service, et al.
Notice of Intent to Sue
April 8, 2008
Page 2
I. THE ENDANGERED SPECIES ACT
Congress enacted the ESA to ensure the protection and conservation of threatened and endangered species. 16 U.S.C. §1531(b). To achieve this purpose, the statute requires that the Service review the ‘best scientific and commercial data available” in order to make determinations about the status and listing of a species. 16 U.S.C. §1533(b)(1), 1533(a)(2)(B)- ©. The statute also allows species to be removed from the federal list when they no longer require special protection, thus allowing federal resources to be spent on efforts to safeguard and recover species that are at greater risk. Upon receiving a petition to delist a species, the Service has approximately 90 days to make a finding as to whether the petition “presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. §1533(b)(3)(A); 50 C.F.R. §424.14(b)(1). Twelve months after receipt of the petition to delist, the Service must determine whether: (1) listing is not warranted; (2) listing is warranted; or (3) listing is warranted but presently precluded by other pending proposals for listing species, provided other circumstances are met. 16 U.S.C. §l533(b)(3)(B). If the Service determines that listing of the species is not warranted or that a species should be delisted, it “shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based.” 16 U.S.C. §1533(b)(3)(B). See also, Center for Biological Diversity v. Norton, 254 F.3d 833, 840 (9th Cir. 2001) (“In order to ‘force action on listing and delisting proposals,’ . . .Congress amended the ESA’s petition process expressly to provide certain mandatory deadlines by which the Secretary must act on a petition.”).
II. VIOLATION OF THE ENDANGERED SPECIES ACT
On June 30, 2005, ASA et al. submitted a formal petition to remove the Peirson’s milkvetch (Astragalus magdalenae var. peirsonii) from the federal list of threatened and endangered species, pursuant to Section 4(b)(3) of the Endangered Species Act (16 U.S.C. § 1533(b)(3)) and Title 5, Section 553(e) of Administrative Procedures Act. The petition provided detailed scientific data supporting the determination that Peirson’s milk-vetch has a stable, viable population that is not threatened with extinction, including evidence that: (1) the Peirson’ s milkvetch has a large seed bank containing as many as 5.6 million seeds, (2) the above-ground expression of Peirson’s milk-vetch fluctuates according to climate conditions, and (3) during rainy years such as 2001 and 2004, the Peirson’s milk-vetch will germinate profusely, producing as many as 286,000 plants.
In response, the Service concluded that the petition contained scientific data sufficient to warrant further review, and published a 90-day finding on November 30, 2005 to that effect. 70 Fed.Reg. 71795-71799 (November 30, 2005). The subsequent twelve-month finding was due in July 2006. 16 U.S.C. §l533(b)(3)(B). Pursuant to communications with the Service, ASA et al. agreed to extend the twelve month finding deadline to October 2006.
GATZKE DILLON & BALLANCE LLP
U.S. Fish and Wildlife Service, et al.
Notice of Intent to Sue
April 8, 2008
Page 3
As of April 2008, the twelve month finding has still not been published, and is now 18- months delinquent in light of the extended deadline of October 2006. Therefore, the Service is currently in violation of the ESA, 16 U.S.C. § 1533. Accordingly, we request that the Service immediately remedy its ESA violation by promptly publishing the twelve-month finding on the potential delisting of the Peirson’ s milk-vetch.
Pursuant to the citizen suit provision of the ESA, the Secretary’s failure to meet the requirements of section 4 is a non-discretionary act or duty as defined by section 11(g). 16
U.S.C. §1533(g)(1)©. If the Service does not initiate consultation before the end of this 60-day notice period, ASA et al. intends to file a civil action to correct this violation, seeking injunctive and declaratory relief, as well as legal fees and cost regarding these violations. ASA et al. may be contacted through their counsel at the following address:
David Hubbard
Gatzke Dillon & Ballance LLP
1525 Faraday Avenue, Suite 150
Carlsbad, California 92008
Please contact us if you have any questions or wish to discuss this matter further. Very truly yours,
,Li9A 1-P
David P. Hubbard of
Gatzke Dillon & Ballance LLP
DPH/rlf
Sweet! I hope they get somewhere this time. I always hear stories of how cool some of the hills are deep in the closure area. Maybe they will actually be accessible again. 
QUOTE (rivermobster @ Apr 8 2008, 04:29 PM) 
i so hate that it had to come to this
So do we. We have established an excellent working relationship with the USFWS... but this needs to be done.
Bravo ASA et. al. Bravo!
Its great to see us (OHV community) on the offensive rather than the defensive.
Its great to see us (OHV community) on the offensive rather than the defensive.
Bravo!
It looks like the ASA has been more than patient. Let's hope we get a judge with some common sense.
It looks like the ASA has been more than patient. Let's hope we get a judge with some common sense.
QUOTE (socaldmax @ Apr 8 2008, 08:50 PM)
Bravo!
It looks like the ASA has been more than patient. Let's hope we get a judge with some common sense.
It looks like the ASA has been more than patient. Let's hope we get a judge with some common sense.
Judge and common sense in the same sentence? All we can do is hope!
Very cool!!
I agree that it sucks that is has to come to this, but I'm glad something is happening. All we can do is hope for the best.
I agree that it sucks that is has to come to this, but I'm glad something is happening. All we can do is hope for the best.
Kick Ass!
Follow the process.
Submit and do what is requested....then hold them accountable to the timelines set on their deliverables.
Effing only way to do things.
Follow the process.
Submit and do what is requested....then hold them accountable to the timelines set on their deliverables.
Effing only way to do things.
man it would be nice for the ASA to do something like this OUTSIDE of the glamis area, say like PISMO, which has been under constant attack since the late 70's.....
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
QUOTE (richard cheese @ Apr 18 2008, 05:25 AM)
man it would be nice for the ASA to do something like this OUTSIDE of the glamis area, say like PISMO, which has been under constant attack since the late 70's.....
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
FOOD has made it very clear that they don't want help from the ASA.
Well why not? I would thing any help is a step in the right direction. Why is FOOD being so hard headed?
excellent move !!..
QUOTE (Superstar70 @ Apr 18 2008, 11:53 AM)
Well why not? I would thing any help is a step in the right direction. Why is FOOD being so hard headed?
They're not.
Although it is all sand, the fight in each area is subtly different. The people of Friends of Oceano Dunes are uniquely qualified to handle the fight for Oceano Dunes.
And, as has been stated by ASA leadership over and over again, there are enough issues within the ISDRA to keep the ASA busy for many years fighting for the ISDRA... so help is offered (by and between all the off-road organizations) and accepted when appropriate.
VickiW
Jesus!
About time they use the same tactics as the CBD....
About time they use the same tactics as the CBD....
QUOTE (PermaGrin @ Apr 18 2008, 11:41 PM)
Jesus!
About time they use the same tactics as the CBD....
About time they use the same tactics as the CBD....
My thoughts exactly ! ( for about 4 years ) Fight fire with fire dangit !!!. Start the dog waggin the tail for a change !.
.
QUOTE (jhitesma @ Apr 18 2008, 11:51 AM)
QUOTE (richard cheese @ Apr 18 2008, 05:25 AM)
man it would be nice for the ASA to do something like this OUTSIDE of the glamis area, say like PISMO, which has been under constant attack since the late 70's.....
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
FOOD has made it very clear that they don't want help from the ASA.
Jason - the ASA can donate directly to FoOD via PAY-PAL, CHECK, MC or VISA....shoot, it is even tax deductible!! We would gladly send them a personal thank you too!
Not sure where you were trying to go with your post....but I don't think it is value added.
Jim
SUPER PROPS TO ASA.
I'm glad I am a member, and glad I can volounteer occasionally.
That is awesome news. Hit the tree huggers with the branch they broke off themselves.
I'm glad I am a member, and glad I can volounteer occasionally.
That is awesome news. Hit the tree huggers with the branch they broke off themselves.
QUOTE (JimS @ Apr 23 2008, 06:57 PM)
QUOTE (jhitesma @ Apr 18 2008, 11:51 AM)
QUOTE (richard cheese @ Apr 18 2008, 05:25 AM)
man it would be nice for the ASA to do something like this OUTSIDE of the glamis area, say like PISMO, which has been under constant attack since the late 70's.....
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
FOOD has made it very clear that they don't want help from the ASA.
Jason - the ASA can donate directly to FoOD via PAY-PAL, CHECK, MC or VISA....shoot, it is even tax deductible!! We would gladly send them a personal thank you too!
Not sure where you were trying to go with your post....but I don't think it is value added.
Jim
where had I heard that before... we don't want your help... just your money.
QUOTE (Emanon @ Jan 9 2010, 08:18 AM)
QUOTE (JimS @ Apr 23 2008, 06:57 PM)
QUOTE (jhitesma @ Apr 18 2008, 11:51 AM)
QUOTE (richard cheese @ Apr 18 2008, 05:25 AM)
man it would be nice for the ASA to do something like this OUTSIDE of the glamis area, say like PISMO, which has been under constant attack since the late 70's.....
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
HEY ASA........PLEASE HELP Friends of Oceano Dunes wage war against the greenies!!
FOOD has made it very clear that they don't want help from the ASA.
Jason - the ASA can donate directly to FoOD via PAY-PAL, CHECK, MC or VISA....shoot, it is even tax deductible!! We would gladly send them a personal thank you too!
Not sure where you were trying to go with your post....but I don't think it is value added.
Jim
where had I heard that before... we don't want your help... just your money.
Umm this thread is almost 2 years old
I don't really think it got us anywhere.
good luck asa
So what happened with this?
Did they sue? Win? Lose?
Did they sue? Win? Lose?
Damn I got all excited....
same
QUOTE (socaldmax @ Jan 9 2010, 09:51 AM)
So what happened with this?
Did they sue? Win? Lose?
Did they sue? Win? Lose?
Well D, I think it's safe to assume they didn't win.
Damn I was hoping that this would start moving all of us ahead...I would love to be a part of something here in Oregon to gain some of our sand back!
We need a "Thread Resurection" emoticon
QUOTE (airkuld @ Feb 23 2010, 01:48 AM)
QUOTE (socaldmax @ Jan 9 2010, 09:51 AM)
So what happened with this?
Did they sue? Win? Lose?
Did they sue? Win? Lose?
Well D, I think it's safe to assume they didn't win.
Ecologic Partners did sue the FWS for not completing the required review in the 12 month time frame required by the ESA.
Ecologic did in fact prevail in this lawsuit and was awarded their lawyers fees as specified in the ESA.
Ecologic Partners is the legal arm of the ASA, ORBA, SDROC and AMA D-37. These four groups contribute funds to Ecologic and have a place on the Ecologic BOD.
Unfortunately the FWS did not agree that the PMV should be delisted and as such the PMV is still listed. The FWS is required to review the listed species every five years and the next review of the PMV is scheduled for 2013. Ecologic will be following this procedure to be sure that the FWS follows all the requirements of the ESA in the five year review of the PMV.
The next chance for opening of the existing closures is via the ISDRA Recreation Area Management Plan (RAMP). A draft RAMP is expected to be released any day and will have a 90 day public comment period where the public will be able to make their comments on what they would like to see changed in the final RAMP. Please watch for the announcement of the availability of this DRAMP and make your voice heard with comments on this plan.
QUOTE (Doc @ Feb 23 2010, 09:21 AM)
QUOTE (airkuld @ Feb 23 2010, 01:48 AM)
QUOTE (socaldmax @ Jan 9 2010, 09:51 AM)
So what happened with this?
Did they sue? Win? Lose?
Did they sue? Win? Lose?
Well D, I think it's safe to assume they didn't win.
Ecologic Partners did sue the FWS for not completing the required review in the 12 month time frame required by the ESA.
Ecologic did in fact prevail in this lawsuit and was awarded their lawyers fees as specified in the ESA.
Ecologic Partners is the legal arm of the ASA, ORBA, SDROC and AMA D-37. These four groups contribute funds to Ecologic and have a place on the Ecologic BOD.
Unfortunately the FWS did not agree that the PMV should be delisted and as such the PMV is still listed. The FWS is required to review the listed species every five years and the next review of the PMV is scheduled for 2013. Ecologic will be following this procedure to be sure that the FWS follows all the requirements of the ESA in the five year review of the PMV.
The next chance for opening of the existing closures is via the ISDRA Recreation Area Management Plan (RAMP). A draft RAMP is expected to be released any day and will have a 90 day public comment period where the public will be able to make their comments on what they would like to see changed in the final RAMP. Please watch for the announcement of the availability of this DRAMP and make your voice heard with comments on this plan.
Thanks for the explanation.
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