United States Ninth Circuit

Summary judgment for defendants, the U.S. Fish and Wildlife Service and a company involved in mining, is affirmed over an environmental organization's claims that: 1) the Service exceeded its statutory authority pursuant to the Endangered Species Act (ESA); 2) a certain critical habitat finding for a species of fish was arbitrary and capricious; and 3) the finding was invalid due to a lack of a notice and comment period.

Appellate Information

• Argued 10/19/2005
• Decided 06/05/2006
• Published 06/05/2006

Judges

• O'SCANNLAIN, Circuit Judge., Before HALL, O'SCANNLAIN, and PAEZ, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• John Buse, Environmental Defense Center, Ventura, CA, argued the cause for the petitioners;  Brent Plater, Center for Biological Diversity, Oakland, CA, and Karen M. Kraus, Environmental Defense Center, Santa Barbara, CA, were on the briefs., Robert J. Uram, Ella Foley-Gannon, and Aaron J. Foxworthy, Sheppard, Mullin, Richter & Hampton LLP, San Francisco, CA, filed a brief for amicus curiae Building Industry Legal Defense Foundation and California Building Industry Association.


• For Appellees:
  
• Andrew Mergen, United States Department of Justice, Washington, D.C., argued the cause for respondent United States Fish & Wildlife Service;  Assistant Attorney General Thomas L. Sansonetti, James C. Kilbourne, and Paul S. Weiland, United States Department of Justice, Washington, D.C., were on the brief., Michael Hassen, Jeffer, Mangels, Butler & Marmaro, LLP, San Francisco, CA, argued the cause for respondent Cemex, Inc.;  Kerry Shapiro and Scott N. Castro, Jeffer, Mangels, Butler & Marmaro, LLP, San Francisco, CA, were on the brief.