finding that the district court thoroughly considered facts relevant to the alleged “take” of the species at issue
How later courts described this case
- finding that the district court thoroughly considered facts relevant to the alleged “take” of the species at issue
- affirming denial of injunction against construction on property containing potential habitat for a species of pygmy owl and confirming that habitat modification does not constitute harm unless it “actually kills or injures wildlife”
- holding that a district court order declining to entertain 13 or grant a Rule 60(b) motion is not a final determination on the merits
- holding that a district court order declining to entertain or grant a Rule 60(b) motion is not a final determination on the merits
Written by the judges who cited it.
The opinion
FLETCHER, Circuit Judge,
concurring:
I concur in the opinion but make these observations to clarify the limited prece-dential value of our opinion-the principal reason for our declining to publish in the first instance. Future cases that involve action or contemplated action in pygmy owl habitat in Arizona will be informed by the critical habitat designation and accompanying explanation in the new Final Rule. At the time this case was tried and argued to us on appeal no final designation on critical habitat had been made. We concluded that the critical hábitat designation had no legal significance in this action brought under Section 9 which involves private land. We concluded that the critical habitat designation did not alter the outcome in this case because, in the end, this case turned on the sufficiency of plaintiffs’ evidence, not on the inclusion or exclusion of the school site from critical habitat. As explained in the FWS regulation, “[cjritical habitat has possible effects on activities by private landowners only if the activity involves Federal funding, a Federal permit, or other Federal action.” 64 Fed.Reg. 37428 (1999). Here, the district court made a factual determination that, based on plaintiffs’ evidence, the pygmy owl did not occupy the school construction site. We concluded that that factual decision was not clearly erroneous. In light of the earlier FWS rule stating that the clearing of unoccupied habitat does not result in a “take,” the district court concluded that plaintiffs’ offered insufficient evidence to demonstrate a take. See Opinion at 927. We do not hold that the designation of critical habitat will never have any bearing on actions on private lands within designated critical habitat, and thus, our decision has limited value for any other case involving either the pygmy owl or private lands that lie within the mapped boundary of designated critical habitat. See Palila v. Hawaii Dep’t of Land & Natural Resources, 639 F.2d 495 (9th Cir. 1981).