Badgley

ORDER

The opinion filed on March 21, 2002, slip op. 4661, and appearing at 284 F.3d 1046 , is withdrawn and replaced with the attached opinion.

OPINION

Biodiversity Legal Foundation, several environmental groups, and individuals (“Appellants”) appeal the district court’s partial grant of summary judgment in favor of Appellees, the Department of Interi- or and the United States Fish and Wildlife Service (“the Service”). The district court ruled that the Service has discretion under 16 U.S.C. § 1533 (the Endangered Species Act (“ESA”)) to make substantial information 'findings beyond the twelve-month deadline imposed for warranted/not-warranted findings. We reverse and hold that the only way to interpret subsection (b)(3)(A) in harmony with subsection (b)(3)(B) is by limiting the Service’s discretion under (b)(3)(A) to the firm deadline imposed by subsection (b)(3)(B).

In its cross-appeal, the Service appeals the district court’s denial of the Service’s request for additional time within which to make three court-ordered warranted/not-warranted findings in dispute. The district court held that, under the ESA, it lacked equitable discretion to grant relief to allow the government…

dissenting:

I respectfully dissent for two reasons. First, after the United States Fish and Wildlife Service (Service) moved for summary judgment, Plaintiffs failed to satisfy their evidentiary burden to establish that they had standing. Therefore, the district court lacked jurisdiction over the action. Second, the case is moot. Therefore, we lack jurisdiction over the appeal. I will address each of those jurisdictional defects in turn.

A. Standing

Plaintiffs failed to meet their evidentiary burden on the question of standing. The district court implicitly treated standing as having been established by the allegations in the complaint. However, because the elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way at as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992). Thus, at the summary judgment stage of the proceedings, “the plaintiff can no longer rest on ‘mere…