Illston Ruling Appeal Update

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Illston Ruling Appeal Update

Post by Vincent J Brunasso »

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
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Post by ddjthomas »

How long did it take to generate these documents the first time :?: I think that would be a good estimate on the time we could expect them to be completed this time.

My only question is how much time did the BLM and FWS waste in filing an appeal and then dropping it :?: As opposed to just starting the new documents to begin with :?:
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Post by crash »

So, basically, our legal people knew more than the government agencies legal people :?: and the appeal was nothing but a waste of time and money :?: Why am I not surprised. I understand why we had to do what we did, just hope there wasn't some other motivating factor behind the governments decision to file this appeal in the first place.

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Post by Vincent J Brunasso »

ddjthomas wrote:How long did it take to generate these documents the first time :?: I think that would be a good estimate on the time we could expect them to be completed this time.

My only question is how much time did the BLM and FWS waste in filing an appeal and then dropping it :?: As opposed to just starting the new documents to begin with :?:
About a year.
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Post by Voice »

So, we wait another year for new documents to get prepared... Watch "glassy eyed" as the new documents are attacked with a new lawsuit... bide our time as the judge takes her own sweet time to rule again and then choke on the new ruling which is guarnteed not to open one square inch of Glamis.

Time frame??? Between 2 years and 20 ...
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Post by GRANT@FUNCO »

Voice wrote:So, we wait another year for new documents to get prepared... Watch "glassy eyed" as the new documents are attacked with a new lawsuit... bide our time as the judge takes her own sweet time to rule again and then choke on the new ruling which is guarnteed not to open one square inch of Glamis.

Time frame??? Between 2 years and 20 ...
And your strategy would be ??????????????
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Post by ChoppedLiver »

Voice I hear you. Frustrating isn't it? However if my memory serves once the new documents are done then they go back to Illston to see if they meet the criteria she set out in her ruling. If so then the RAMP can be implemented. Grant, Vince am I far off?

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Post by Glamisbound »

Another dissapointment! Sorry, can't get excited about the RAMP either. We get screwed either way.
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Post by jhitesma »

Vincent J Brunasso wrote:About a year.
No personal offense Vince....but that's got to be about the funniest thing I've read in a long time.

You don't seriously think they'll finish that in a year do you? Remember the original "new" ramp was supposed to be done before the CBD even sued...and look at how many years later it was that it was finally "finished" then how many years after that it was in contention before now just finally being tossed away.

Frankly I'd be shocked if we see a new ramp in under 10 years.

Sounds to me like the governments false appeal was just another delay tactic and it makes me wonder if there aren't as many green moles in the legal department in washington as there are in the Carlsbad FWS office.

Since day one the governments "attempts" at any kind of legal defense have been designed towards failure. It's getting real hard to write up this many major errors as simply incompetence.

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Post by Voice »

GRANT@FUNCO wrote:
Voice wrote:So, we wait another year for new documents to get prepared... Watch "glassy eyed" as the new documents are attacked with a new lawsuit... bide our time as the judge takes her own sweet time to rule again and then choke on the new ruling which is guarnteed not to open one square inch of Glamis.

Time frame??? Between 2 years and 20 ...
And your strategy would be ??????????????
When unreasonable laws are passed reasonable people become criminals.

I'm only pointing out the obvious. There is no way in hell I am going to sit around and wait another 10 years (as jason suggests) and quietly do what I am told. I'm certain I am not alone.

You want to try to pick this thing apart I'll add this. If you start up a new RAMP you **** well better get rid of that AMA bullcrap.
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Post by crash »

"The natives are getting restless." :D

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Post by Vincent J Brunasso »

jhitesma wrote:
Vincent J Brunasso wrote:About a year.
No personal offense Vince....but that's got to be about the funniest thing I've read in a long time.
None taken. I think you need to re-read the post more closely - I was answering his question how much time was wasted with this appeal nonsense.
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Post by Vincent J Brunasso »

ChoppedLiver wrote:Voice I hear you. Frustrating isn't it? However if my memory serves once the new documents are done then they go back to Illston to see if they meet the criteria she set out in her ruling. If so then the RAMP can be implemented. Grant, Vince am I far off?
I can't see how FWS/BLM would proceed otherwise.
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Post by jhitesma »

Vincent J Brunasso wrote:
jhitesma wrote:
Vincent J Brunasso wrote:About a year.
No personal offense Vince....but that's got to be about the funniest thing I've read in a long time.
None taken. I think you need to re-read the post more closely - I was answering his question how much time was wasted with this appeal nonsense.
That makes more sense. When I first read it it sounded like you were saying a new ramp would only take one year - I'd agree that this latest delay tactic did add about another year.

Though I still say that was a very well calculated delay year and was not done accidentally or without forethought.

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Post by Vincent J Brunasso »

jhitesma wrote:
Vincent J Brunasso wrote:
jhitesma wrote: No personal offense Vince....but that's got to be about the funniest thing I've read in a long time.
None taken. I think you need to re-read the post more closely - I was answering his question how much time was wasted with this appeal nonsense.
That makes more sense. When I first read it it sounded like you were saying a new ramp would only take one year - I'd agree that this latest delay tactic did add about another year.

Though I still say that was a very well calculated delay year and was not done accidentally or without forethought.
Sometimes you just help but notice that it looks and quack likes a duck, it must be a duck. My best guess is that greens inside the government pushed it farther out in hopes of a friendlier administration in the near future. We need that delisting.
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Post by Jerry Seaver »

Things are always changing but as of yesterday the State Office of the BLM was estimating that it would be 2010 before they have a ROD (Record of Decision) on a new RAMP (Recreation Area Management Plan), EIS ( Environmental Impact Statement) and BO (Biological Opinion). The first step required by the court is for the USF&WS (United States Fish and Wildlife Service) to establish Critical Habitat for the PMV (Peirson milk- vetch) by Feb. of 2008.
The RAMP will have to have public input meeting like they did in the past, I believe there was around six of them. This is a huge process and at this time they are planning on subcontracting this out to a firm that does these kind of documents. The last one cost over a million bucks.

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Post by ddjthomas »

Vincent J Brunasso wrote: We need that delisting.
What is the status of the delisting and what is the next step :?:

Also, if we got a delisting how would that impact Judge Ill's ruling?

Seems to me her ruling would be crap and they could just open the dunes! Or at least implement the ramp as is and start working on a new one, the ramp as is would be better than the markings on the ground right now :!:
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Post by Vincent J Brunasso »

ddjthomas wrote:
Vincent J Brunasso wrote: We need that delisting.
What is the status of the delisting and what is the next step :?:

Also, if we got a delisting how would that impact Judge Ill's ruling?

Seems to me her ruling would be crap and they could just open the dunes! Or at least implement the ramp as is and start working on a new one, the ramp as is would be better than the markings on the ground right now :!:
The last we heard it was in Sacramento then it goes to DC. Whatever the ruling, it must be posted in the Federal Register. IIRC, there's a 30-day comment period before the ruling takes effect. CBD may try for an injunction if it is a reasonable ruling maintaining that the closures must stay up until the decision is reviewed by the courts.

Without a listed species in the dunes, there's no need for critical habitat, or a biological opinion. So there's no more need for the court to decide whether the documents are valid - the case would likely be dismissed. Likely the new RAMP could be implemented without further litigation - what else could they sue on?. Modifications to it would become far simpler.
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