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DEFENDERS OF WILDLIFE v. FLOWERS

Nos. 03-16884, 03-16887.

414 F.3d 1066 (2005)

DEFENDERS OF WILDLIFE; Center for Biological Diversity, Plaintiffs-Appellants, v. Robert B. FLOWERS, Lt. General, Chief of Engineers and Commander, U.S. Army Corps of Engineers; Christine Todd Whitman, Administrator of U.S. Environmental Protection Agency; Gale A. Norton; Steven Williams, Defendants-Appellees, Steven A. Owens, State of Arizona, exrel, Director Arizona Department of Environmental Quality; Grosvernor Holdings; National Association of Home Builders; Southern Arizona Home Builders Association; Home Builders Association of Central Arizona; Saguaro Ranch Investments LLC; Saguaro Ranch Development Corporation, Defendants-Intervenors-Appellees. Defenders of Wildlife; Center for Biological Diversity, Plaintiffs-Appellees, v. Robert B. Flowers, Lt. General, Chief of Engineers and Commander, U.S. Army Corps of Engineers; Christine Todd Whitman, Administrator of U.S. Environmental Protection Agency; Gale A. Norton; Steven Williams, Defendants, Steven A. Owens, State of Arizona, exrel, Director Arizona Department of Environmental Quality; National Association of Home Builders; Southern Arizona Home Builders Association; Home Builders Association of Central Arizona; Saguaro Ranch Investments LLC; Saguaro Ranch Development Corporation, Defendants-Intervenors, and Grosvernor Holdings, Defendant-Intervenor-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed July 12, 2005.

Attorney(s) appearing for the Case

Michael Senatore, Washington, DC, for plaintiffs-cross-appellants/appellees Defenders of Wildlife, et al.

Todd Aagaard, Assistant United States Attorney, Washington, DC, for the defendants-appellees.

Norman D. James, Phoenix, AZ, for defendant-intervenor-appellee/cross-appellant Grosvernor Holdings.

Richard Rollman, Tucson, AZ, and Eric S. Merrifield, Seattle, WA, for amicus National Association of Home Builders.

Before: FERGUSON, NOONAN, and RYMER, Circuit Judges.

Opinion by Judge NOONAN. Dissent by Judge FERGUSON.

NOONAN, Circuit Judge:

Defenders of Wildlife and the Center for Biological Diversity (collectively Defenders) appeal the grant of summary judgment to the Army Corps of Engineers (the Corps). Defenders challenged the decision of the Corps not to consult with the Fish and Wildlife Service (the Service) on the effect on the Arizona cactus ferruginous pygmy-owl of two developments in Arizona. The district court...

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