Norton

ORDER

In this action, plaintiffs challenged the actions of the Secretary of the Interior, acting through the Fish and Wildlife Service (“FWS”), (1) listing the distinct population segment (“DPS”) of the cactus fer-ruginous pygmy owl in southern Arizona as an endangered species, pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 , et seq., and (2) designating the critical habitat for the pygmy owl DPS, *1167 also under the ESA. The district court upheld the listing, but (at the suggestion of the FWS) remanded the critical habitat designation to the FWS for further consideration. The district court entered judgment on its listing decision on December 13, 2001. Plaintiffs eventually secured a certification from the district court under Federal Rule of Civil Procedure 54(b), certifying the December 13 judgment as a final judgment. 1 We asked for supplemental briefing on two, related issues: whether the affirmance of a listing decision is a final judgment such that a Rule 54(b) certification is not required, even though the district court retains jurisdiction over the habitat designation and remands it to the agency; and (2) if not a final judgment, whether the…