Defenders of Wildlife Southwest Center for Biological Diversity v. Mike Bernal Robert Smith, Dr.,superintendent Board

finding jeopardy. the basis for double ment. To languag extent that in Means quoted court stated its order: from The district contrary above is to clear meaning statutory history, case, the Means Having reviewed language to the unnecessary was re- that it must find that concludes Court in sult the case and dictum constitutes “an was affirmative del- the amendment which only, binding present is not in the jurisdiction” by Congress to egation litigation. [Means ]. Id. at 946 Ac- the tribes. acting

cordingly, pursuant a tribe III. CONCLUSION a fed- delegation jurisdiction exercises sover- power eral and becomes the same We conclude that the 1990 amendments respect eign as United States with delegation to ICRA did not amount to a jeopar- Indians double non-member tribes, authority Congress to the but from dy purposes. instead recognition constituted inherent sovereign power of the tribes to 11. E.R. at prosecute non-member Indians. Because the district inter- We believe that the sover- recognize the 1990 amendments of Means case too preted language eign power prosecute Indian tribes to The statement Means broadly. who non-member Indians commit crimes congressional serve as amendments lands, sovereignty on tribal the dual doc- jurisdiction” delegation “affirmative applies in this trine case. The Double opinion, in the tempered footnote not bar Jeopardy Clause therefore does part: reads in Michael Enas prosecution the successive chose quite likely Congress It is government. the United States “recognized language and affirmed” and RE- Accordingly, we REVERSE potential avoid an effort to Constitu- MAND trial. problems might implicated tional delegation jurisdic- an affirmative tion, only applied prospec- even when

tively. Duro makes that non- clear are

Indians and non-member Indians

similarly regard to tribal situated jurisdic- of criminal courts’ exercise WILDLIFE; South DEFENDERS OF tion .... Biological Diver west Center For Means, n. 7. 154 F.3d at 946 sity, Plaintiffs-Appellants, in Means treating the con- language del- gressional language as an “affirmative BERNAL; Smith, Mike Robert jurisdiction” necessary egation of Dr., Board, Superintendent; court’s the court to the decision. Whether Defendants-Appellees. statutory to be language considered the No. 98-16099. power of federal an affirma- delegation existing power, congressional tion of Appeals, Court United States operate retroactively enactment could not Ninth Circuit. event prejudice the defendant violating that case without the Ex Post 7, 1998 Argued and Oct. Submitted Facto Clause of the Constitution. Filed Memorandum Nov. Means, 948; id. at see also F.3d Filed Feb. Order (Reinhardt, J., concurring). 950-51 obligated the clear apply We statutory

meaning language, as well history supporting

as the of that enact- HUG, Judge,

Before: Chief FLETCHER, TROTT, Circuit Judges. HUG;

Opinion Judge Chief by Judge B. FLETCHER. Concurrence ORDER HUG, Judge: Chief disposition The Memorandum filed No- 23, 1999, redesignated vember as an Opinion Judge Hug authored Chief B. Fletcher. Judge a concurrence OPINION Defenders of and the Southwest Wildlife Biological Diversity (collectively for Center “Defenders”) appeal the district or- court’s restraining lifting der order temporary denying permanent their motion for a injunction halt the construction a new property school which Defenders con- potential for tend contains habitat the cac- ferruginous (pygmy-owl), owl tus endangered under the Endan- listed Glitzenstein, Glitzenstein, Meyer Eric & (ESA), Species gered Act U.S.C. Fritschie, D.C. and De- Washington, John §§ At in this 1531-1543. issue case is Wildlife, D.C., Washington, for fenders of critically- of a whether construction the plaintiffs-appellants. high by the Amphi- needed new school (the School School theater District Dis- Smith, Bainton, Denise M. Lisa Anne trict) in Tucson result in the northwest will Lacy, McDonald Tuc- DeConcini Yetwin & endangered pygmy-owl “take” of the son, Arizona, A. Jaeger, Legal Todd Coun- ESA, of section violation 9 of the U.S.C. sel Dis- Amphitheater for Unified School 1538(a)(1)(B). § Tuczon, Arizona, trict, the defendants- for three-day After a bench trial the district appellees. court found DC, and Dougherty, Washington, James not result in take of a pygmy- would Levinson, CA, Francisco, Alex San for injunction. and denied permanent owl Wildlife, al. amicus National et appeal In this assert Defenders (1) erroneously concluded Boros, se, AZ, Tucson, for pro Diana their plaintiffs failed to meet burden amicus Land Ad-Hoc Search Committee. (2) proof, should have apply School District to incidental AZ, Hardy, Tucson, T. amicus David (3) permit, take inappropriately excluded Washington Legal Foundation. (4) incorrectly denied Defender’s Motion for New Trial. We judgments jurisdiction over final to 28 pursuant the district court U.S.C. and we affirm. lizards, insects, I. and small mammals frogs. occurs from low- Background and Procedural Factual land central Arizona through south por- paid In the School District $1.78 tions of western Mexico and from southern purchase a 73 site in million acre north- Texas south through portions other Tucson, which a high west new school Mexico on down through portions of Cen- high complex would be built. The tral America.1 The FWS indicates that 2,100 is intended to accommodate students 54,400 there are a total acres suitable composed buildings, and is ath- several Tucson, habitat northwest students, parking letic fields and areas for which includes the 73 acre school site. faculty and visitors. December The school site within desig- falls the area site, purchase after the of the school nated the FWS as critical habitat for United Fish States and Wildlife Service pygmy 37,419 the owl. See 64 Fed. Red. (FWS) a formally published proposed rule (1999).2 pygmy-owl list the as an endangered 10, species under the March ESA. On parcel Within the 73 acre acquired by 1997, required procedures after the and 1994, the School District in there are three commentary period, the the FWS listed “arroyos”, “dry defined as washes” or pygmy-owl endangered species as an un- “ephemeral desert waterways”. The U.S. der the ESA. Army Corps Engineers designated the “jurisdictional arroyos as pursuant waters” The is a small reddish brown Act, § to the Clean Water 33 U.S.C. 1251 relatively long owl known for its tail and seq. original design call which et The primarily monotonous is heard of the School complex dawn and dusk. The District called nests for some construc- cavity “jurisdictional waters”, in a or tion large large tree colum- within the birds, nar cactus. Its diet thereby requiring diverse includes the School District ferruginous pygmy-owl 1. The cactus pygmy-owl. is one of nated the critical habitat of the subspecies ferruginous pygmy-owl. four of the requested supplemental We briefs from the ferruginous pygmy-owl effect, It is the cactus parties discussing any, what if this case, we are concerned in this with and the by identification of critical habitat the FWS "pygmy-owl” opinion term as used in this regulation designated had on this case. The subspecies. refers to that 731,712 acres, 54,000 including the acres north of Tucson and the 90-acre school site “(i) specific 2. Critical habitat is defined as the that had been discussed in the trial. It does geographical occupied areas within the area brought not affect the result in this case under species, the at the time it is listed in involving private Section 9 of the ESA land Act], accordance with on which [the because the district court found that there (I) physical biological found those or features "taking” endangered species was no of the species essential to the conservation of the (the owl). pygmy legal significance There is (II) may require special manage- and which ESA, pertains under section 7 of the (ii) protection; ment considerations or agency federally actions federal autho- specific geographical areas outside the area projects. regulation rized or funded The itself occupied by species the at the time it is listed makes this clear: Act], provisions in accordance the with [the designation The of critical habitat no has Secretary a determination the pri- effect on non-Federal actions taken on such areas are essential for the conservation private vate land the even if land is within 1532(5)(A). species.” § 16 U.S.C. mapped boundary designated the critical possible habitat. Critical has habitat effects regulation At the time the FWS issued its by private only on activities landowners if determining is an owl endan- activity funding, 1997, the involves Federal a Fed- 10, gered species on March it did not permit, eral or other Federal action. designate species the critical habitat for the (1999). Fed.Reg. 1533(a)(3)(A). 37428 provided § for in 16 U.S.C. only designation applica- habitat During Critical is pendency appeal, of this in re- private sponse ble to Federal lands and to lands if to a lawsuit instituted in October regulation July a Federal nexus exists. the FWS issued a on 37419-37440, (1999). Fed.Reg. desig- Fed.Reg. agency. permit under the Water authorized federal The dis- obtain Clean issue, temporary restraining trict court entered a permit Act. a federal was at Because The court later consolidated the order. that “formal Corps the FWS informed for hearing request on a pre- Defenders’ to section 7 of pursuant consultation” injunction the trial liminary on the impact ESA was assess the trial, three-day Following merits. project pygmy-owl.3 order, deny- final issued its initiated, before com- Consultation but injunction, ing request permanent for a pletion process the School District lifting temporary restraining or- application permit for the be- withdrew its motion granted der. We Defenders’ redesigned so that project cause it had injunction appeal. pending jurisdic- construction would affect rede- waterways. tional As result of the II. signed planned no project, development arroyos in containing acres Statutory the 30 Framework portion property. western 9 of makes Section the ESA unlawful acquired acquire School District has or will species endangered to “take” listed as initially acquired to the east acres 1538(a)(1)(B). threatened. 16 U.S.C. property redesigned for utilization in the harass, harm, ‘take’ “The term means to Thus, project. the entire school hunt, kill, shoot, wound, pursue, trap, cap- acres, including 90 contain- is the 30 acres collect, to attempt engage ture or or to ing arroyos. The will parcel 30 acre 1532(19). § any such conduct.” 16 U.S.C. For undeveloped remain and fenced off. alleged proposed The take that the is con- opinion, ease in identification in this will harm the pygmy- struction harass or parcel 90 acre will be referred to as entire Department The of the owl. Interior has site.” The 60 acres “school a further promulgated regulation defining to complex designed which the school is be harm and harass as follows: acre built will be referred to the “60 as Harm the definition of “take” in the parcel”. parcel, The acre undeveloped 30 actually Act means an act which kills or arroyos, which will re- contains be injures may wildlife. Such act include parcel”. ferred to as “30 acre significant modification or degra- habitat where kills or actually injures dation it 1998, In March be- School District by significantly impairing wildlife essen- gan salvaging a plant operations precur- including tial patterns, behavioral breed- beginning sor to construction. Defenders feeding or ing, sheltering. immediately seeking temporary filed suit a in the “take” Harass definition of in the restraining injunc- and a preliminary order Act means an intentional or negligent prevent tion against School District to act or omission which creates the likeli- any action on the site. Defenders injury by annoying hood of to wildlife it alleged that the vio- an significantly to such extent as to dis- lated Section 9 of ESA because was rupt patterns normal behavioral which likely pygmy-owl, to harm or a harass include, to, breeding, but not limited are which Defenders assert inhabit or use the feeding or sheltering.... applies site. 9 of the to Section ESA § 17.3. 50 C.F.R. private parties, whereas Section ESA, resolved, ap- had earlier species indirect, been Harming may be out, funded, plies only to actions or harm may carried be caused habitat pertinent part provides: any endangered species 3. The Section 7 or threatened species shall, or the destruction result in or ad- agency federal Each in consultation spe- verse of habitat of modification such and with the the Secre- assistance of authorized, Secretary cies which is tary, funded, determined insure action agency ... or carried out such is not critical.... 1536(a)(2). likely jeopardize § existence continued 16 U.S.C. modification, modification would harm a pygmy-owl by killing but habitat does or it, it “actually constitute harm unless kills injuring or likely would more than not injures Department wildlife.” harass a by annoying it to such upheld definition of harm was Interior’s an extent as disrupt its normal behav- challenge validity a facial to its against Rosboro, patterns. ioral 50 F.3d at Chapter the case of Babbitt v. Sweet Home 784. The district court’s final order awas Oregon, Communities Great 515 thorough, detailed carefully reasoned 2407, 132 L.Ed.2d 597 U.S. S.Ct. analysis discussion of the (1995). upholding In the definition of witnesses and other evidence encompassing “harm” as habitat modifica- produced at the judge trial. The framed tion, emphasized that Supreme Court his analysis discussion and as follows: in the definition “every regulation’s term case, In this there primarily two phrase of ‘harm’ is subservient to the ‘an 1) material questions: factual Does a actually injures act which kills or wild- or occupy any part use n. life.’” Id. 115 S.Ct. 2407. 2) school site? Will the construction and prior Three months to the Siveet Home operation result decision we held in Forest Conservation “take” through the “harm” or “harass- Co., v. Rosboro Lumber Council pygmy-owl? ment” of a The Court has (9th Cir.1995), that habitat modifi- concluded that the evidence supports reasonably injure that' certain to cation that an finding portion owl or owls use a endangered by impairing their species of the site which the Defendants do not patterns essential behavioral satisfied the intend develop. Accordingly, injury requirement actual and was suffi- Court’s has further inquiry devolved into justify permanent injunction. cient to 1) two remaining questions: whether action, subsequent it was contended that clearing portion the unused of the prop- Home had Rosboro Siveet overruled and owl, erty could spite “take” the that an actual violation of the ESA was what the FWS has concluded in the injunction before an issue. could 2) Rule,4 proof Final and what is offered However, Babbitt, in Marbled Murrelet v. operation that the construction and (9th Cir.1996), we held the school will harm or harass the owl. Supreme that the Court’s decision in Sweet Home does not overrule Rosboro and that The district judge first discussed his reasonably certain threat of imminent findings territory factual as to the that was protected species harm to a is sufficient occupied pygmy-owls. or used He injunction for issuance of an under section expert testimony found from the and other 9 of the ESA. produced pygmy-owls evidence that territory boundary used to the north of the III. boundary and the west of the of the school

Harm and Harassment Claims pygmy-owl site and that no had been de- anywhere tected the school it- within prevail In order to in this action Defend- However, self. he found that there was prove ers had to that the School District’s pyg- reasonable inference that one or more actions would result in an unlawful “take” my-owls arroyos used of the pygmy-owl. injunction An the area be- would be Murrelet, boundary north appropriate tween the and west bound- relief. See Marbled ary arroyos 83 F.3d at 1064. Defenders had the of the school site. These bur- proving by preponderance parcel den of of the within the acre that will remain undeveloped. evidence that He found that there also occupied po- 4. The FWS said in its Final Rule that the modification of habitat” could harass, harm, clearing unoccupied tentially habitat would not be a or otherwise take take, (1997). "clearing significant pygmy Fed.Reg. § 9 whereas owl. 62 vege- to native minimal disturbance that a with prove insufficient evidence tation) inference supports .... This the 60 acre portion used may activity of the owl’s that the “core” complex is which the school parcel upon may be west of in the Area but not be be built. site, acre the 30 the school and length explained at some judge The fringe of the may the outer Area support his he relied on to what territory the uses. bird opin- judge stated findings. The next discussed The district court of the experts, the evidence ion of scientific to the finding that harm for his basis the recent pygmy-owl, of the habits He proven. owl was not observed bird, supports of the aural detection uses that an owl that while the inference the bird or birds inference that logical on solid factual parcel acre is based the 30 they currently the areas where use opinion, and well-founded premises north and west near the been detected the construction of allegation site, the area be- boundaries this harm the owl lacks high school will arroyo. within the points those two tween in- by seemingly weakened support and is this within noted that because habitat He judge The noted consistent facts. pygmy-owls, arroyo area is suitable weight opinions he to the although gives birds, prey provides provides cover blindly rely on their he cannot experts, to travel corridor for owl a natural how the con- opinions and must consider boundary to the west the north from they and whether clusions were reached frequently been boundary where has rehable, citing Daubert are relevant and sited, drawn that the an inference can be Pharmaceuticals, Inc., 509 Merrell Dow con- judge area. The then owl uses this L.Ed.2d 469 113 S.Ct. U.S. which he refers parcel, trasted the 30 acre (1993). had experts of Defenders’ One Area”, the rest of the “the would increase testified that a school school site: activity human on the school amount of sight- there have been no Contrarily, can although pygmy-owls to- site and that beyond the clusters ings the owl activity, he of human lerate some level and west near the north detections enough level would be suspected and exten- property boundaries occupy not to render or cause property have surveys of the entire sive in contra- judge noted that the area. detection of produce single failed to one suspicions that the expert’s diction to the cavities A search of 361 pygmy-owl. a activity by harmed human owl would be site, in on the saguaro of cacti school, high there was with the associated nest, no prefer produced owls pygmy a can tolerate pygmy-owls that little There is therefore pygmy-owls. human fairly high degree presence. of that the owl factual basis to conclude Department and Fish The Arizona Game site, outside the rest of the school uses are not “pygmy-owls that reported had display the Because owls of Area.... people or by presence intimidated fidelity and have been seen near the density can acclimate to low urbanization never detected on the school Area but 1995-96, a associated activities.” Area, in con- spite of site outside of the been was constructed and has K-8 school there, a to find them centrated efforts of the a distance north operating short that inference can made logical be neighbor testi- proposed school site. One using is not the remainder owl shouting that had chased an owl fied she concen- Finally, the heaviest broom, site.... owl had waving a but the it and sitings by [Ari- confirmed trations At one resi- to the residence. returned dence, near Department] grape- Game and Fish was found in a family zona an owl in- west of house and was site are residential areas fruit tree close to the on end impact spected range there is low at close for weeks the school site where (one guests. and his plot acre the resident housing house on a 3-5 the facts trict to apply stated that do for an Incidental Take Per- judge The finding (ITP). that the owl will be mit The district court support concluded that He noted there was evi- permitting harassed. that provisions found in the owl can tolerate and even that dence Section 10 of the mandatory. ESA are not activity, from human and that De- benefit We review a district court’s conclusion on only speculation offered that fenders question of law de novo. See Russian activity with associated the school River, 142 F.3d at 1141. He would harass owl. observed If a action a take constitutes experts attempt made little no or ESA, under Section 9 party may

support opinions their with recorded ob- apply servations owls similar cir- for an ITP under Section 10. 16 analogies or to 1539(a)(1)(B). cumstances draw from oth- § U.S.C. If the FWS judge er similar birds. The found that ITP, grants party proceed can with support opinion this failure to with fact proposed activity despite taking seriously degraded expert the value of the an endangered species. The School Dis- He “the opinions. stated limited data trict declined apply for an ITP because presented about the owls which was did position its was that the proposed con- clarity not show feed- breeding, struction would not result in the take of an im- ing, sheltering adversely would be endangered pygmy-owl. argue Defenders pacted operation the construction the district court failing erred judge the school.” The summarized his require the School District to seek an ITP findings follows: as based on scientific contradictory presented by facts presented. assumptions Plaintiffs and about what support will harm the bird cannot pursuing We have established that actually conclusion that the owl will mandatory party ITP is not can injured likely or will be harassed. Fi- proceed per- choose whether to with the nally, the FWS has concluded that clear- Rosboro, process. mitting 50 F.3d at ing unoccupied habitat will not “take” However, if a party 783. chooses not to an owl and the Court has concluded a permit proposed activity, secure and the school, planned, fact, species, takes a listed the ESA clearing occupied will not involve hab- penalties. authorizes civil and criminal itat. party may See 16 U.S.C. 1540. Thus finding We review a district court’s proceed permit, without a but it risks civil clearly of fact under the erroneous stan if penalties and criminal a “take” occurs. 52(a); dard. See Fed.R.Civ.P. Russian The district court did not err in concluding River Watershed Protection Comm. that the School District was not Rosa, (9th Santa F.3d Cir. to seek an ITP. 1998). supported findings The well factual judge clearly district are not errone V. ous, and affirm we the conclusion of the court that district the construction of the Evidentiary Rulings complex pygmy- will not “take” a owl. Defenders assert the district by excluding court committed clear error IV. testimony additional critical and evidence Apply

Failure to an Incidental Povilitis, Anthony Dr. from conservation Take Permit Richardson, biologist, Mary and an expert pygmy-owls. Evidentiary rulings on Defenders contend that district should have the School Dis- reviewed for an abuse discretion motion, Nancy In of that Kauf- preju support absent some not be reversed should FWS, man, Opportuni supervisor at the Employment Richardson’s Equal dice. See Inc., Pape Lift, providing an affidavit that she ty Comm’n submitted (9th Cir.1997). biologists testify- against FWS policy has a litigants. private ing at trial between Anthony A. Dr. Povilitis First, office Kaufman noted that FWS largest in Arizona has the workload a Ph.D wildlife Dr. Povilitis holds biologists simply and the do biology and is an established conservation nation not Second, granting In the motion in li- biologist. testify. policy have time to mine, explained the district court that “in to biologists ensures that staff are able deposition appeared that give [Dr. Povilitis’] on an opinion their best scientific qualified opinion to issue an as to he was they may have issue without concern that viability pygmy-owl population testify in litigation. quite frankly ... stated' his but he quash, In granting the motion that he was unable to do that. deposition utility the district court concluded that, I that the other Beyond don’t think out testimony of Richardson’s would of any matters he would offer would be weighed by the interests government’s relevance in this case.” avoiding personnel. an undue burden on its Dr. Much of what Povilitis would by Nancy provided Based on the affidavit background have to was informa testified Kaufman and the supporting reasons biology pygmy- tion on conservation policy biologists not allowing FWS’ their general, specific owls in information liti testify in trials private between on the site or in the pygmy-owls about gants, we find that the court did area. Defenders failed to show excluding its discretion in Rich not abuse testimony had exclusion of Povilitis’ testimony. ardson’s prejudicial effect. Most of Dr. Povilitis VI. was addressed oth Therefore, testifying experts. er we con Motion a New Trial the district court did not abuse clude that trial for bench this case commenced excluding Dr. Povilitis’

its discretion in May on April 1998 and ended on testimony. 8,May 1998. On issued district court n B. Mary Richardson under denying its order Defenders’ claims Motion ESA. Defenders then filed a Mary pygmy-owl Richardson is for a Partial to Fed. pursuant New Trial author primary with the FWS was the (1) 59(a), the sur- asserting R.Civ.P. listing of the FWS rule veys of the conducted pygmy-owls site for addition, endangered species. she by Mary Darling just days three before project visited the connection upon trial were unscientific an affi- based triggered Section 7 consultation co-worker, Terrio, davit from her Michael request permit for a under the Clean Wa- (2) physical new discovered ter Act. Based 1997 letter from that could indicate the site Army Corps Engineers, FWS to (3) presence, and the district court should Defenders contend that Richardson could De- granted continuance to allow noisy have testified to whether construc- survey the site for indications of fenders parking tion and lot would be student pygmy-owls. The district court denied the likely pygmy-owls to harass or harm and 59(a) Motion. likely pygmy-owls whether it is that 59(a), the using only portion the 30 acre northwest of Under Fed.R.Civ.P. reopen to parcel. The District filed a district court has the discretion the School entered, take quash deposition. judgment motion to a if one has been Richardson’s

929 testimony, findings additional amend of exercise of diligence, due at the time affidavit, moreover, law fact and or make new trial. His conclusions cannot be post-trial A in findings and conclusions. used an to attempt impeach denying Darling’s granting testimony court’s decision mo trial that no pygmy- 59(a) tion Rule for an were using under is reviewed owls the site. Browning-Ferns abuse of discretion. See Terrio’s affidavit further stated that Vermont, v. Disposal, Indus. Inc. Kelco upon returning to May the site on and 30 Inc., 257, 278, 2909, 492 U.S. 109 S.Ct. verify Darling’s June to identification (1989); Ross, L.Ed.2d 219 Scott owl, an Darling elf he and phys- discovered (9th 1275, Cir.1998). F.3d In order evidence, ical such pellets, as owl dried to establish that the district court abused remains, lice, lizard in nesting material its in denying discretion motion for a saguaros, one the which could indicate newly new trial on the basis of discovered that a pygmy-owl previously had in nested evidence, (1) Defenders must establish a saguaro cactus toward the center of the trial, (2) the evidence was discovered after property. Because these oc- searches diligence the exercise of due would not May curred on 30 and June after being have in the resulted evidence discov trial, the information contained Terrio’s (3) ered an stage newly earlier affidavit newly constitutes discovered magnitude discovered evidence is of such physical regarding the School of it production likely earlier would However, District’s property. there no is changed the outcome of the case. evidence, showing why this with the exer- v. Toyota Coastal Co. Motor Transfer diligence, cise of due could not have been (9th

Sales, U.S.A., Cir. prior During discovered to trial. discov- 1987). ery, requested Defenders could have ac- Mary Darling, consultant hired cess to the site in survey order to District, School testified based cactus cavities and check physical evi- site, survey her April conducted on of pygmy-owls. dence Defenders cannot 26, 1998, trial, 59(a) days three before now use a there Rule Motion to extend addition, pygmy-owls occupying discovery were no the proper- deadline. In physical ty owned the School District. Based on presence evidence that could indicate the searches, Darling these testified that she on the site did, fact, eggs see one small owl with in magnitude likely change that would a saguaro case, on cavity property, especially but that of this outcome since this she physical concluded it was an elf owl rather than evidence could also indicate the a pygmy-owl. Subsequent trial, to presence of an elf owl. site, Darling May returned on Finally, Defenders assert verify and June that she had fact highly prejudicial the district court seen an elf a pygmy-owl owl rather than rely Darling’s on al testimony without distinguishing

because between the two is lowing plaintiffs a indepen continuance to often difficult. She verified that she did dently survey potential nesting cavities see an elf owl. site, especially light of the affida 59(a) motion, support of their vit from her co-worker. At the time trial, provided requested Defenders an affidavit from Mi Defenders that the court Terrio, chael Darling’s grant coworker who was them continuance to allow a few present during all surveys, days independent three which extra an in conduct saguaro cavity stated that the vestigation search con saguaro cavities on just prior ducted to trial was “not scienti Darling site since had conducted her sur fically vey valid” had just prior been “conducted to trial. The district court above, request. unscientific manner.” Defenders have denied As discussed why failed to show completed Terrio’s Defenders could have such obtained, survey during discovery could not have been with the before trial. 930 opinion-the principal of dential value our court did not abuse

Therefore, the district declining publish for a in the denying request the reason for our discretion its Future cases that involve continuance. first instance. in pygmy contemplated action or action court that the the district agree with We will Arizona be informed owl habitat Mo- support the of evidence submitted designation and accom- the critical habitat Trial is insufficient a Partial New tion for Final Rule. explanation in the new panying Accordingly, we con- trial. grant new and argued the this case was tried At time did not abuse that the district court clude designation final on appeal us no on Motion Defenders’ denying its discretion made. We con- critical habitat had been New Trial. for a designation that the critical hábitat cluded VIL in this legal action significance had no 9 involves brought under Section 60(b) Motion Fed.R.Civ.P. criti- private land. We concluded the pending De appeal this was While did not alter the designation cal habitat under Rule fenders filed a motion Federal because, end, in this the outcome case 60(b) asserting that of Civil Procedure sufficiency of plain- this turned on the case concerning the newly discovered evidence evidence, the ex- tiffs’ on inclusion or not occupied by used area clusion of the school site from critical habi- by the court. district should considered regulation, explained tat. in the FWS As hear if the district court We waited to “[cjritical possible habitat has effects on to entertain motion. See Gould wished only if the by private activities landowners York, New Ins. Co. 790 Mutual Life funding, involves a Feder- Cir.1986) activity Federal (9th (explaining 772 F.2d 64 permit, al or other Federal action.” bringing a procedures followed when to be (1999). 60(b) Here, the appeal Fed.Reg. district Rule motion after a notice filed); that, Wright, 11 Charles Alan has been court made factual determination Kane, Mary Kay evidence, R. & Fed Arthur Miller plaintiffs’ based on (1995) eral Practice and Procedure occupy owl did not (same). 23, 1998, dis September On factual deci- site. We concluded declining trict court issued order clearly light sion not erroneous. 60(b) Motion. grant entertain or the Rule stating rule the earlier FWS A to enter declining district court order not clearing unoccupied habitat does 60(b) grant tain or a Rule Motion “take,” result the district court con- procedural ruling not final determi plaintiffs’ insufficient cluded that offered Gould, on 790 F.2d nation the merits. See Opin- to demonstrate a take. See Intermark, Inc., (citing at 772 Crateo v. desig- ion 927. We do hold that Cir.1976)). (9th Because habitat never have nation of critical will merits, judgment there is no final on the on lands any bearing private actions on 60(b) by the underlying issues raised habitat, thus, designated within critical appeal. on Ca Motion not reviewable our has limited value for oth- decision Ingersoll-Rand Co. v. Peterson nadian pygmy owl or involving er case either the Inc., Mateo, F.2d Products San private mapped lands that lie within (9th Cir.1965). boundary designated critical habitat. & Dep’t See Palila v. Hawaii Land Conclusion (9th Resources, F.2d 495 Natural Cir. foregoing, judgment Based 1981). is AFFIRMED. FLETCHER, concurring: Judge, Circuit opinion but make these

I concur in the clarify prece-

observations to limited

Case Details

Case Name: Defenders of Wildlife Southwest Center for Biological Diversity v. Mike Bernal Robert Smith, Dr.,superintendent Board

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 28, 2000

Citation: 204 F.3d 920

Docket Number: 98-16099

Court Abbreviation: 9th Cir.