CITY OF LAS VEGAS v. LUJAN

Nos. 89-5352, 89-5362.

891 F.2d 927 (1989)

CITY OF LAS VEGAS, et al., Appellants, v. Manuel LUJAN, Jr., in his Official Capacity as Secretary, Dept. of Interior, et al. CITY OF LAS VEGAS, et al. State of Nevada, Appellant, v. NEVADA DEVELOPMENT AUTHORITY, et al.

United States Court of Appeals, District of Columbia Circuit.

Decided December 13, 1989.


Attorney(s) appearing for the Case

Brian McKay, Atty. Gen., State of Nev., of the Bar of the Supreme Court of Nevada, pro hac vice, by special leave of the Court, with whom Bernard Nash, William A. Butler, Andrew P. Miller and Joseph E. Kolick, Washington, D.C., were on the brief, for appellant, State of Nev. Frank F. Flegal also entered an appearance for appellant, State of Nev.

Irwin Goldbloom, Washington, D.C., with whom William C. Kelly, Jr. was on the brief, for appellants, City of Las Vegas, et al.

Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C., with whom George W. Van Cleve, Acting Asst. Atty. Gen., and John A. Bryson, Atty., Dept. of Justice, and David Gayer, Solicitor, Dept. of Interior, Washington, D.C., were on the brief, for appellees.

William Perry Pendley, Arlington, Va. and Todd S. Welch, Cheyenne, Wyo. were on the brief for amici curiae, Mountain States Legal Foundation, et al., urging reversal.

John J. Rademacher, Park Ridge, Ill. was on the brief for amici curiae, American Farm Bureau Federation, et al., urging reversal.

Michael Bean also entered an appearance for amici curiae, the Environmental Defense Fund, et al., urging affirmance.

Before MIKVA, SILBERMAN and D.H. GINSBURG, Circuit Judges.


Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Pursuant to his powers under the Endangered Species Act ("Act"), 87 Stat. 884, 16 U.S.C. §§ 1531-1544, the Secretary of Interior issued an emergency regulation on August 4, 1989 listing the Mojave Desert population of the desert tortoise (Gopherus agassizii) as an endangered species. See Emergency Rule, 54 Fed.Reg. 32326 (to be codified at 50 C.F.R. &...

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