[5] No BiOp Appeal For Feds In Ninth Circuit
The Department of Justice announced July 30 that it would not petition for a rehearing of a 9th U.S. Circuit Court of Appeals panel's ruling that backed up a 2005 decision [NWF v. NMFS] in U.S. District Court that threw out the 2004 BiOp.
The state of Idaho has already petitioned for a rehearing in the Ninth, preferably en banc. However, the Idaho filing automatically sets the appeals clock back, said NOAA Fisheries spokesman Brian Gorman, who said the feds now have 90 days to decide whether to appeal NFW v. NMFS to the U.S. Supreme Court.
A recent Supreme Court decision [National Association of Homebuilders v. Defenders of Wildlife] found that the ESA does not trump other federal statutes, which some say runs counter to the original BiOp decision by Judge James Redden in the District Court.
But other legal analysts say the feds might find it difficult to apply the Supreme Court ruling to the BiOp case. -B. R.
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