Babbitt

Defendants Bruce Babbitt, Secretary of the Interior, and Mollie Beattie, Director of *869 the Fish and Wildlife Service (collectively “the Secretary”), appeal from the district court’s grant of summary judgment in favor of the plaintiff, Environmental Defense Center (“EDC”), in EDC’s action to compel the Secretary to make a final determination on a petition to list the California red-legged frog as an endangered species pursuant to the Endangered Species Act. The Secretary admits that he failed to make a final determination on the red-legged frog by the statutory deadline. He contends, however, that he currently is unable to do so because Public Law 104-06 rescinds funding for the making of a final determination that a species is endangered. Although we agree with the district court that the appropriations rider does not repeal or modify the Endangered Species Act, we find that the Secretary currently is unable to comply with his listing duty under the Act due to the unavailability of funds. Therefore, we vacate and remand for the district court to modify its order and judgment so that the Secretary’s compliance is delayed until a reasonable time after appropriated funds are made…