Dear Fellow Sand Sport Enthusiast:



As many of you know, the Peirson's milk vetch (PMV) listing for
protection under
the corrupted Endangered Species Act (ESA) was dubious from the
start. The answer
to our delisting petition, obtained only after a successful suit
against the
Fish and Wildlife Service, is even more questionable. Now we are
asking a judge
to decide.



Recently, ASA, in conjunction with ORBA and SDORC, filed suit asking a
judge
to reverse the Fish and Wildlife decision to maintain the listing of
the PMV.
An excerpt of the complaint is below followed by a link to a complete
download.

*Quote:
*

2. Plaintiff’s bring this action on grounds that (1) defendants did
not adequately
address all claims set forth in the Delisting Petition; (2)
defendants did not
demonstrate that the original decision to list the Peirson’s
Milk-Vetch (“PMV”)
was based on sound or adequate scientific data; (3) defendants did
not provide
sufficient evidence to rebut the data submitted by plaintiffs showing
that the
PMV is abundant and not threatened; (4) defendants relied on outdated
and inferior
data to deny the Delisting Petition; (5) defendants did not support
with substantial
evidence their contention that the PMV remains threatened by
off-highway vehicle
(“OHV”) use or other human or natural phenomena; and (6) defendants
demanded
from plaintiffs a level of scientific certainty that is unreasonably
high and
beyond that required by the ESA and beyond that employed by
defendants when
they made the initial decision to list the PMV as threatened in 1998.
For these
reasons, and others, the defendants’ decision to deny plaintiffs’
Delisting
Petition was arbitrary and capricious, and in violation of both the
Administrative
Procedures Act (“APA”), 5 U.S.C. § 702, and the ESA, 16 U.S.C.
§ 1533(.


3. Through this action, plaintiffs seek a Court Order that (1)
overturns defendants’
denial of plaintiffs’ Delisting Petition, and (2) directs defendants
to publish
a rule under 16 U.S.C. § 1533( officially removing the PMV
from the federal
list of threatened and endangered species. Plaintiffs also seek to
recover all
reasonable attorneys’ fees and costs incurred in this action, as
provided under
Section 11(g)(4) of the ESA. 16 U.S.C. § 1540(g)(4).




http://www.glamisonline.org/downloads/Comp...ingPetition.doc
)





Thank
you for your support,

The American Sand Association

Unite, Inform and Mobilize
PS:
Best Holiday Wishes to you and yours.

Hmmm...was this an ASA mass e-mail? I didn't receive it...in any case, did they give some sort of time table on when they were expecting any kind of action to take place?

The thermometers are checkin the temp in hell as we speak.

I'd really like this to be a successful venture.

But I know there is a significant amount of well established case law that demonstrates to me this case has very little chance of success.

The Court(s) have repeatedly shown great deference to the Agency decision(s) unless the agency completely disregarded the evidence before them. In this case, based upon the record I’ve seen, this is not the case here.

could set a precedent maybe?

To be a precedent (which I’d love to see), the case has to be somewhat unique.

There are numerous cases before the Federal Bench that are very similar to the above referenced case here. I’ve yet to read from Lexus or Westlaw a case where the Court reversed a decision of an agency that appeared to consider and weigh the evidence provided by the Plaintiff and made a contrary decision to the Plaintiff (Petitioner’s) request.

One needs to read the Federal Register notice provided by the USFWS as to its rational to deny the Petition. The USFWS appears to me to have considered the evidence provided by Petitioner ASA and rejected the Petition for rational provided in the Notice.

Vicki - By action, I simply meant getting a judge to take a look at the case...filing a lawsuit is not the same as having your suit heard, what I want to know is whether it'll be days, weeks, months, or years until the suit is actually brought before a court...

Perhaps I can offer some insight here.

The Complaint was filed on October 18, 2004 (or thereabouts)

Usually, there is a 30-day period that the Defendant has to "reply" to the Complaint. The "reply" is filed with the Court. The "reply" usually denies the claim(s) of the Complaint, or agrees with the Plaintiff and a settlement is reached.

Once this is completed, the Court can set a date for a hearing or assign the case to a lower form from a full-fledged Hearing. Sort of a alternative resolution meeting to see if the Parties can come to some sort of resolution short of a full Court process. The time frame for this usually is between 60-90 days after the Complaint is filed. If there is no hope of resolution at this level, then a Hearing is scheduled.

In this matter, one needs to contact ASA to find if a date has been set for either a "resolution" Hearing or a full fledged Hearing before the Court.

So, at worst, 120 days (30 day reply + 90 days to get a hearing/resolution meeting) from mid-October means we should hear something by mid-February?

The fact that this year and last the PMV count is in the 200,000 + range makes it unique enough. That and the absolute abuse of the ESA keeps us moving forward .

We won't give up until hear it from the top courts in the land.



Pimpshack this is the latest from our Lawyer



--------------------------------------------------------------------------------

UPDATE: Next step.

The federal defendants must answer the complaint (which they did just a week or so ago), and then they prepare the administrative record (AR). This constitutes the universe of evidence that USFWS had before it when it made its decision to deny the delisting petition. It also functions as the universe of evidence that the court will review. Once the AR is prepared and lodged with the Court, the parties will develop a briefing schedule and settle on a hearing date.

More as things move forward.

That fact, Grant, may bode well for the case.

Considering the arbitrary and capricious standard of the Administrative Proceedure Act ("APA") being a very, very, high mountain to climb, coupled with the Court here in the West having an environmental protection leaning; I don't have the confidence you have in this venture.

Thanks Grant! So will the AR become public record when FWS releases it?

The "AR" (administrative record) is already a matter of public record. One simply needs to contact the FWS to view it (likely at the Carlsbad office) or a copy may be sent free of charge or for a fee.

From the way Grant put it, it sounds like they just filed their response and they're in the process of preparing the AR...but I'm assuming that it will become public information as soon as it's released.

It would sound to me as if that would be the case by what Grant posted here, but I'm assuming that what he is leading to is the USFWS is providing a compiled copy of all the documents their (ASA et. al.) attorney and the Court.

All of these documents are usually in a file or computer somewhere and available for public inspection from the day this decision was made public via the Federal Register Notice.

Ah, so it's old news from the first time they denied the petition...I wouldn't doubt they gave all the weight of the report to the study done in the '70s by Pierson or whoever...

I'm only aware that USFWS denied the ASA et. al. Petition to De-List within the past 6 months or so.

That being said, any and all information that was used for the above referenced decision is a matter of public information and is available for viewing at this time.

One small point Duck. One of the main things FWS relied on to support their position was an unfinished unpublished report that they in part funded. I can't remember the name of the researcher off hand but he appared with Dr. Phillips and Patterson at that plants conference to present some of his preliminary findings.

One interesting example - that report criticized Dr. Phillips report for not studying a large enough sample of the PMV population. Yet that same report was only studying a sub-set of Dr. Phillips sub-set!

That report was not publically available at the time the decision was reached as the research was on-going.

It's also worth noting that some of what that report claimed has now been disproved regarding how the PMV reproduces - specifically that plants do not flower the same year they germinate - something Dr. Phillips has now witnessed first hand and documented as false. That's VERY important as it means that plants don't have to survive a full year to replenish the seed bank - something the other report claimed and which the FWS used to justify keeping the PMV listed.

The FWS also twisted Dr. Phillips report in their findings and used to to support things that it proved were false!

And FWIW apparently that other report has progressed and the researched is now changing his tune on many aspects of the PMV that he claimed Dr. Phillips had wrong - after further study he found that Dr. Phillips was actually correct in his conclusions.

Oh - and even though everything SHOULD be publically available that dosn't necessarially mean it would be easy or even possible for one person to collect and review it (such as the unpublished unfinished study) - it's my understanding that this is what he AR is for - it makes the FWS do all the footwork of presenting their evidence in one place instead of making the various parties do the footwork themselves.

I hope you are not missing my point here Jason.

The facts as I read them certainly point to the PMV not needing protection from the ESA.

But the reality of similar cases before the Court, especially here in Kalifornia, leads me to find that this matter is doomed from the beginning.

I point to well established Case Law that demonstrates that it’s rare for the Court to substitute its judgment for that of the Agency. From what I've read in both the FWS denial of the ASA Petition and the Complaint recently filed with the Court; my level of comfort for success remains low.

And, it’s not unusual for the Agency to use yet to be finished "science" as part of the basis of their decision(s).

Further, the propensity of the Court here in Kalifornia is that of showing deference toward environmental protection.

Finally, I agree that documents that make up the Administrative Record (“AR”) might be hard to find if one has little expertise in finding such records, the agency nonetheless must respond to such requests accurately and within a timeframe established by law.