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Aland v. Salazar

September 16, 2010

ROBERT H. ALAND, PLAINTIFF,
v.
KEN SALAZAR, SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS, AND STATE OF WYOMING, DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

ORDER

INTRODUCTION

Robert H. Aland, plaintiff appearing pro se, seeks judicial review of the U.S. Fish and Wildlife Service's ("FWS" or "Service") decision that designated the Greater Yellowstone Area ("GYA") population of grizzly bears as a distinct population segment ("DPS") and removed the GYA grizzly bear DPS from the list of endangered and threatened species. (Complaint ¶ 1, Dkt. No. 1.) Aland's claims overlap with another similar matter before this Court, Western Watersheds Project v. Servheen, No. 4:07-CV- 00243-EJL (D. Idaho filed June 4, 2007). As the Court has previously recognized, this case presents some unique issues not expressly raised by Western Watersheds. (Memorandum Order at 6, Dkt. No. 48.) Accordingly, the Court has, to date, not consolidated these two cases. See id.

Aland's claims are also similar to those litigated in Greater Yellowstone Coalition v. Servheen, which vacated the very rule Aland challenges here. Greater Yellowstone Coalition v. Servheen, 672 F. Supp. 2d 1105 (D. Mont. 2009). The FWS has appealed Greater Yellowstone Coalition to the Ninth Circuit. (Federal Defendants' Second Status Report at 1, No. 4:07-CV-00243, Dkt. No. 114.)

Thus, in light of that pending Ninth Circuit appeal, which has significant bearing on this case, the Court will stay this litigation. However, the Court will first address and resolve the numerous, pending, fully briefed non-dispositive motions before it. Additionally, the Court will deny, without prejudice and with leave to refile, the pending summary judgment motions also on file.

BACKGROUND

On June 4, 2007, the plaintiffs in Western Watersheds filed their challenge to the FWS GYA grizzly delisting in this Court. (Complaint at 1, No. 4:07-CV-00243, Dkt. No. 1.) Then, on August 2, 2007, Aland filed this case in the District Court for the Northern District of Illinois. (Complaint at 1, Dkt. No. 1.) Finally, on November 13, 2007, the plaintiffs in Greater Yellowstone Coalition filed their action challenging the FWS GYA grizzly delisting. Complaint at 1, Greater Yellowstone Coalition v. Servheen, 672 F. Supp. 2d 1105 (D. Mont. 2009).

On December 11, 2007, Judge James B. Zagel transferred this case from the Northern District of Illinois to this Court in response to an FWS motion. (Memorandum Opinion and Order at 11, Dkt. No. 1-3.) Judge Zagel decided to transfer this case primarily because Western Watersheds was filed earlier and because that case raises substantially the same issues as Aland. See id.

While this case and Western Watersheds have been pending, Judge Donald W. Malloy of the District of Montana decided Greater Yellowstone Coalition, granting summary judgment on two of the plaintiff's claims and vacating the FWS decision at issue here. Greater Yellowstone Coalition, 672 F. Supp. 2d at 1126-27. As a result of Greater Yellowstone Coalition, the FWS issued a new rule with the effect that any and all grizzly bears in the GYA are listed as a threatened species under the [Endangered Species Act]. Because the [Montana] Court vacated the entire delisting rule and remanded it to the Service, there is no longer a GYA grizzly bear DPS. Thus, all grizzly bears in the lower 48 States are again listed as threatened.

Reinstatement of Protections for the Grizzly Bear in the Greater Yellowstone Ecosystem in Compliance with Court Order, 75 Fed. Reg. 14,496, 14,498 (March 26, 2010) (internal citations omitted) (emphasis added).

DISCUSSION

In light of Greater Yellowstone Coalition and the subsequent FWS rule "relisting" GYA grizzlies and "declassifying" them as a DPS, the very agency action Aland now challenges is not in effect. This, of course, causes the Court to question whether it has jurisdiction over Aland's claims; indeed, Aland arguably now lacks standing and his claims arguably are moot. Nevertheless, the Court will simply stay, not dismiss, this case because Greater Yellowstone Coalition is on appeal and because a Ninth Circuit decision in favor of the FWS could breathe new life into Aland's claims. However, before ordering the stay, the Court will discuss the pending motions now before it.

1. Motions to Take Judicial Notice

Aland has filed nine motions asking the Court to take judicial notice of various publications, writings, and webpages. (Motions to Take Judicial Notice, Dkt. Nos. 92, 97, 98, 121, 137, 140, 145, 146, 154.) To date, the FWS and Defendant-Intervenor State of Wyoming ("Wyoming") have responded to the first eight ...


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