1 ADAM R.F. GUSTAFSON Principal Deputy Assistant Attorney General 2 U.S. Department of Justice Environment and Natural Resources Division 3 MEREDITH L. FLAX, Deputy Section Chief 4 NICOLE M. SMITH, Assistant Section Chief ANGELA MO, Trial Attorney (CA Bar No. 262113) 5 Wildlife & Marine Resources Section P.O. Box 7611, Ben Franklin Station 6 Washington, D.C. 20044 7 Tel | (202) 353-5129; Fax | (202) 305-0275 8 Attorneys for Defendants 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SAN FRANCISCO BAYKEEPER; )

12 CALIFORNIA SPORTFISHING PROTECTION ) 13 ALLIANCE; RESTORE THE DELTA; and )

FRIENDS OF THE RIVER, )

14 ) Plaintiffs, ) Case No. 3:25-cv-01360-LJC 15 ) 16 v. ) UNOPPOSED MOTION FOR ) 43-DAY EXTENSION OF TIME TO 17 UNITED STATES FISH AND WILDLIFE ) COMPLY WITH JUDGMENT; SERVICE, a United States Government Agency; ) ORDER 18 DIRECTOR of the U.S. Fish and Wildlife Service ) 19 in their official capacity; DOUG BURGUM, in ) Hearing Date and Time: his official capacity as Secretary of the U.S. ) January 27, 2026, at 10:30 a.m. 20 Department of the Interior, ) ) 21 Defendants. ) 22 ) ) 23 24 NOTICE OF MOTION 25 PLEASE TAKE NOTICE that Defendants—the U.S. Fish and Wildlife Service (the 26 “Service”), Brian Nesvik, in his official capacity as the Director of the Service, and Doug Burgum, 27 in his official capacity as Secretary of the U.S. Department of the Interior—hereby move under 28 Federal Rule of Civil Procedure 60(b)(5) and (6) for a 43-day extension of the June 3, 2026,

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1 deadline for Defendants to submit for publication in the Federal Register a finding under 16 U.S.C. 2 § 1533(b)(3)(B) on Plaintiffs’ petition to list the San Francisco Estuary population of white 3 sturgeon as threatened. Plaintiffs do not oppose this Motion. A hearing on this unopposed Motion 4 is set for January 27, 2026, at 10:30 a.m. 5 The June 3, 2026, deadline was ordered by the Court in its final judgment (Dkt. No. 33) 6 and September 3, 2025, order (Dkt. No. 32). By this Motion, Defendants respectfully request relief 7 from the final judgment and order in the form of a 43-day extension of the deadline to account for 8 the duration of a lapse in appropriations to the Service, which interrupted the Service’s work 9 towards completing the finding. If this Motion is granted, the deadline would be extended to July 10 16, 2026. In support of this Motion, Defendants submit the points and authorities below and the 11 attached declaration of Gina Shultz, the Service’s Acting Assistant Director for Ecological 12 Services. 13 POINTS AND AUTHORITIES IN SUPPORT OF MOTION 14 I. Introduction and Background 15 This case concerns the Service’s obligation to make a finding under Section 4(b)(3)(B) of 16 the Endangered Species Act, 16 U.S.C. § 1533(b)(3)(B), on Plaintiffs’ petition to list the San 17 Francisco Estuary population of white sturgeon as threatened. On September 3, 2025, the Court 18 issued Findings of Fact and Conclusions of Law, ordering Defendants to “submit that finding no 19 later than June 3, 2026 (nine months from the date of this Order) for publication in the Federal 20 Register.” Dkt. No. 32 at 18. The Court reasoned that a nine-month timeline was “presumptively 21 feasible” and consistent with the statute’s timeline. Id. at 17. On the same day, the Clerk of the 22 Court entered the final judgment in this case, also ordering Defendants to “submit a finding under 23 16 U.S.C. § 1533(b)(3)(B) on the petition at issue no later than June 3, 2026 for publication in the 24 Federal Register.” Dkt. No. 33. 25 Under Federal Rule of Civil Procedure 60(b)(5) and (6), Defendants respectfully request 26 relief from the final judgment and September 3, 2025, order to account for the 43-day lapse in 27 appropriations to the Service that lasted from October 1 through November 12, 2025. The lapse 28

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1 in appropriations—unforeseen and beyond Defendants’ control—caused the Service to cease work 2 on the finding. In short, for 43 days, work on the finding was not just infeasible but impossible. 3 Plaintiffs do not oppose the requested extension. 4 II. Standard for Relief from a Final Judgment or Order 5 Under Federal Rule of Civil Procedure 60(b)(5) and (6), a court may relieve a party from 6 a final judgment or order if, as relevant here, “applying it prospectively is no longer equitable,” 7 Fed. R. Civ. P. 60(b)(5), or for “any other reason that justifies relief,” Fed. R. Civ. P. 60(b)(6). 8 For a motion for equitable relief under Rule 60(b)(5), the Ninth Circuit applies the “flexible 9 standard” set forth in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 368 (1992). SEC v. 10 Coldicutt, 258 F.3d 939, 942 (9th Cir. 2001) (citing Rufo and Bellevue Manor Assocs. v. United 11 States, 165 F.3d 1249, 1255 (9th Cir. 1999)). The Rufo standard “allows courts to fulfill their 12 traditional equity role” by “tak[ing] all the circumstances into account in determining whether to 13 modify or vacate a prior injunction.” Bellevue, 165 F.3d at 1256; Calif. v. U.S. Envt’l Protection 14 Agency, 978 F.3d 708, 713 (9th Cir. 2020). The standard provides that a party seeking 15 modification to a court order need only establish that a “significant change in facts or law warrants 16 a revision of the decree and that the proposed modification is suitably tailored to the changed 17 circumstances.” Rufo, 502 U.S. at 393; Coldicutt, 258 F.3d at 942. Modification is thus warranted 18 when “changed factual conditions make compliance with the decree substantially more onerous” 19 or “when a decree proves to be unworkable because of unforeseen obstacles.” Coldicutt, 258 F.3d 20 at 942 (quoting Rufo, 502 U.S. at 384). Modification is not just warranted but required if 21 “compliance becomes legally impermissible.” Id. (citing Rufo, 502 U.S. at 388). 22 For a motion under Rule 60(b)(6), a party must show “extraordinary circumstances” to 23 justify relief. Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (citing Ackermann v. United States, 24 340 U.S. 193, 199 (1950)); Martinez v. Shinn, 33 F.4th 1254, 1262 (9th Cir. 2022) (citing 25 Gonzalez). In determining whether extraordinary circumstances are present, a court must engage 26 in a “case-by-case inquiry that requires the trial court to intensively balance numerous factors, 27 including the competing policies of the finality of judgments and the incessant command of the 28

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1 court’s conscience that justice be done in light of all the facts.” Hall v. Haws, 861 F.3d 977, 987 2 (9th Cir. 2017) (citations omitted); see also Buck v. Davis, 580 U.S. 100, 123 (2017) (court may 3 consider “wide range” of factors). 4 III. Argument 5 Following the September 3, 2025, judgment in this case, the Service has been diligently 6 working to meet the Court’s June 3, 2026, deadline for a finding on the San Francisco Estuary 7 population of white sturgeon. Declaration of Gina Shultz (“Shultz Decl.”) ¶ 3. Consistent with 8 the Court’s order, the Service developed a compressed nine-month timeline for its internal 9 processes so that the agency could meet the court-ordered deadline. Id. 10 As part of this nine-month process, the Service immediately convened a core team of three 11 biologists and one statistician in the San Francisco Bay-Delta Fish and Wildlife Office to conduct 12 the Species Status Assessment (“SSA”), which is the “rigorous scientific analysis of the biological 13 condition and viability of the San Francisco Estuary population of white sturgeon and forms the 14 biological basis for the Service’s internal decision-making.” Id. ¶ 4; see also Dkt. No. 26-1 ¶¶ 9- 15 11 (declaration of Donald Ratcliff describing purpose of SSA framework and resulting SSA report 16 in the context of the Service’s 12-month finding process). To ensure completion of the SSA under 17 the compressed timeline, the Service selected staff who already have “extensive background 18 knowledge and understanding of the San Francisco Estuary and expertise in biological modeling 19 necessary to prepare the statistical analysis of the population status and trajectory.” Shultz Decl. 20 ¶ 4. In September and early October, as part of the SSA process, the core team sent letters to tribal, 21 state, and other interested parties requesting relevant information; initiated a thorough review of 22 the relevant scientific literature; and discussed and refined the analytic approach for modeling the 23 population. Id. 24 At the end of the day on September 30, 2025, the appropriations act that had been funding 25 the Service expired and those appropriations to the Service lapsed. Dkt. No. 36 at 2; Shultz Decl. 26 ¶ 5. Once appropriations lapsed, employees of the Service could not work on the finding, even on 27 a voluntary basis, except in very limited circumstances, including “emergencies involving the 28

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1 safety of human life or the protection of property.” See 31 U.S.C. § 1342; see also Environmental 2 Def. Ctr. v. Babbitt, 73 F.3d 867, 871-72 (9th Cir. 1995) (holding that “lack of available 3 appropriated funds prevents the Secretary from complying with the [Endangered Species] Act”); 4 Shultz Decl. ¶ 5. Accordingly, the staff on the core team were prohibited from working on the 5 determination and ceased working on Plaintiffs’ petition after sending out some of the interested 6 party letters on October 2, 2025, as part of completing all the administrative steps to ensure an 7 orderly shutdown. Shultz Decl. ¶ 5. Funding was not restored until 43 days later, late in the 8 evening on November 12, 2025. Dkt. No. 40; Shultz Decl. ¶ 5. This lapse in appropriations was 9 beyond the Service’s control and unforeseeably halted the agency’s work towards completing the 10 white sturgeon finding. 11 Once appropriations were restored, the team promptly resumed its work, including sending 12 letters to federal parties requesting information that the Service should consider during preparation 13 of the assessment. Shultz Decl. ¶ 6. However, the 43-day appropriations lapse and resulting loss 14 of working days has created a backlog of the Service’s required work and of revising deadlines, 15 including other court-ordered deadlines. Id. ¶ 7. The end result is that the Service has significantly 16 less capacity and time to meet the June 2026 deadline than intended by the Court or contemplated 17 by the Endangered Species Act. 18 The Court set the deadline based a nine-month timeframe, deeming nine months as 19 “presumptively feasible” based on “the schedule Congress has set in the ESA.” Dkt. No. 32 at 17 20 (“[T]he statutory schedule contemplates that the remaining work after the ninety-day decision 21 should take no more than nine months.”). But the unforeseen lapse in appropriations made it 22 infeasible—impossible in fact—for the Service to work on the finding for a significant portion of 23 the timeframe. Indeed, the appropriations lapse was akin to a “complete funding freeze” by 24 Congress, which the Court has recognized “render[s] compliance truly impossible.” Dkt. No. 32 25 at 13 (citing Environmental Defense Center. v. Babbitt, 73 F.3d 867 (9th Cir. 1995)); see also 26 Babbitt, 73 F.3d at 871-72 (in-house review and decisionmaking would necessarily require use of 27 appropriated funds, but the “government cannot make expenditures, and therefore cannot act, other 28

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1 than by appropriation”). 2 Without an extension, the Service will have only seven-and-a-half months to complete 3 work that it had planned to accomplish over nine months to comport with the Court’s timeframe. 4 Under Rule 60(b)(5), Defendants have shown a significant change in factual conditions warranting 5 an extension of 43 days to restore the Court’s intended timeframe. See Coldicutt, 258 F.3d at 942. 6 The appropriations lapse made the Service’s ability to comply with the Court’s order “legally 7 impermissible” for a period of time. Coldicutt, 258 F.3d at 942. And even though appropriations 8 have been restored, the Service’s ability to comply has been made “substantially more onerous” 9 and “unworkable because of unforeseen obstacles” because the appropriations lapse effectively 10 shortened the Court’s nine-month timeframe by more than a month, making the June 2026 deadline 11 “no longer equitable,” Fed. R. Civ. P. 60(b)(5). Moreover, the length of the extension is “suitably 12 tailored to the changed circumstance.” Flores v. Lynch, 828 F.3d 898, 909 (9th Cir. 2016) (citing 13 Rufo, 502 U.S. at 383). Cognizant of the Court’s directive to complete internal processes in 14 sufficient time to meet a nine-month timeframe, Defendants request only the exact number of days 15 necessary to restore the original timeframe allotted by the Court. 16 Even if the Court does not apply Rule 60(b)(5), the Court may, in its equitable discretion, 17 extend the deadline under Rule 60(b)(6). The 43-day lapse in appropriations presents 18 “extraordinary circumstances” warranting a commensurate extension. See Gonzalez, 545 U.S. at 19 535. Defendants should not be hindered in their diligent efforts to comply with the Court’s order 20 due to an unforeseen situation beyond their control. See Ackermann, 340 U.S. at 199 (recounting 21 example of extraordinary situation that “cannot fairly or logically be classified as mere ‘neglect’”). 22 Such extraordinary circumstances justify a limited extension commensurate with the number of 23 days lost to the appropriations lapse. 24 IV. Conclusion 25 For all the reasons above, Defendants respectfully request that the Court grant relief under 26 Rule 60(b)(5) or (6) from the final judgment and September 3, 2025, order and extend the Service’s 27 June 3, 2026, deadline by 43 days to July 16, 2026. 28

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1 2 Dated: December 22, 2025 Respectfully submitted, 3

ADAM R.F. GUSTAFSON

4 Principal Deputy Assistant Attorney General 5 U.S. Department of Justice Environment and Natural Resources Division 6 MEREDITH L. FLAX, Deputy Section Chief NICOLE M. SMITH, Assistant Section Chief 7 8 /s/ AngelaMo ANGELA MO,Trial Attorney 9 CA Bar No. 262113 Wildlife and Marine Resources Section 10 P.O. Box 7611, Ben Franklin Station 11 Washington, D.C. 20044 Tel: (202) 353-5129 12 Fax: (202) 305-0275 E-mail: Angela.Mo@usdoj.gov 13 14 Attorneys for Defendants 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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ORDER

2 3 UPON UNOPPOSED MOTION BY DEFENDANTS AND PURSUANT TO FED. R. 4 P. 60(b)(5) AND/OR 60(b)(6): 5 1. Defendants’ Unopposed Motion for 43-Day Extension of Time to Comply with 6 ||Judgment is GRANTED. 7 2. The Court relieves Defendants from the June 3, 2026, deadline ordered in the 8 ||Court’s final judgment (Dkt. No. 33) and September 3, 2025, order (Dkt. No. 32). Defendants 9 hereby ORDERED and ENJOINED to submit for publication in the Federal Register a 10 finding under 16 U.S.C. § 1533(b)(3)(B) on Plaintiffs’ petition to list the San Francisco Estuary 11 ||population of white sturgeon as threatened no later than July 16, 2026. 12 13 ||IT IS SO ORDERED. 14 15 16 |!Dated: December 23, 2025 | hoa, ) 17 TH N. L J. CISNEROS United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28

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01360-JLC