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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

8 9 10 CENTER FOR BIOLOGICAL DIVERSITY, No. C 16-06040 WHA et al., 11 Plaintiffs, 12 ORDER DENYING STIPULATED v. REQUEST FOR EXTENSION 13 U.S. FISH & WILDLIFE SERVICE, et al., 14 Defendants. 15 / 16 In this action for declaratory and injunctive relief under the Endangered Species Act 17 regarding the status of the Pacific fisher, an order dated May 17, 2019 gave the United States 18 Fish & Wildlife Service (“the Service”) until October 26, 2019, to submit a revised proposed 19 listing for publication in the Federal Register and until April 25, 2020, to submit a final listing 20 determination (Dkt. No. 105). The parties have stipulated to and request a 30-day extension of 21 the deadline to publish the final listing determination (Dkt. No. 114). The cause given is that a 22 member of the public has requested an extension of the notice-and-comment period by 90 days. 23 The deadlines have already been extended twice (Dkt. Nos. 105, 91). 24 Rule 60(b)(5) provides grounds for relief from a final judgment where “applying it 25 prospectively is no longer equitable.” Our court of appeals has adopted the “more flexible 26 standard of evaluating motions that seek to invoke the equity provision of Rule 60(b)(5)” 27 announced in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992). Bellevue Manor 28 Assocs. v. United States, 165 F.3d 1249, 1256 (9th Cir. 1999). “[A] party seeking modification 1 warrants revision of the [judgment].” Rufo, 502 U.S. at 383. “If the moving party meets this 2 standard, the court should consider whether the proposed modification is suitably tailored to the 3 changed circumstance.” Ibid. 4 Meaningful notice-and-comment is fundamental to an agency’s careful rulemaking. But 5 this final rule has been long delayed and twice extended. Under the May 17 order, the public 6 will already enjoy a 45 day notice-and-comment period (Dkt. No. 105) — this is sufficient for a 7 diligent member of the public to comment on the proposed rule. The extension is DENIED. 8 9 IT IS SO ORDERED. 10 11 Dated: December 3, 2019.

WILLIAM ALSUP

12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28