San Francisco Baykeeper et al v. United States Fish And Wildlife Service et al

UNOPPOSED M OTION FOR 43-DAY EXTENSION OF TIME TO COMPLY WITH JUDGMENT – 3:25-
01360-JLC 	1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ADAM R.F. GUSTAFSON
Principal Deputy Assistant Attorney General
U.S. Department of Justice
Environment and Natural Resources Division
MEREDITH L. FLAX, Deputy Section Chief
NICOLE M. SMITH, Assistant Section Chief
ANGELA MO, Trial Attorney (CA Bar No. 262113)
Wildlife & Marine Resources Section
P.O. Box 7611, Ben Franklin Station
Washington, D.C. 20044
Tel | (202) 353-5129; Fax | (202) 305-0275
Attorneys for Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
SAN FRANCISCO BAYKEEPER;
CALIFORNIA SPORTFISHING PROTECTION
ALLIANCE; RESTORE THE DELTA; and
FRIENDS OF THE RIVER,
Plaintiffs,
v.
UNITED STATES FISH AND WILDLIFE
SERVICE, a United States Government Agency;
DIRECTOR of the U.S. Fish and Wildlife Service
in their official capacity; DOUG BURGUM, in
his official capacity as Secretary of the U.S.
Department of the Interior,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 3:25-cv-01360-LJC
UNOPPOSED MOTION FOR
43-DAY EXTENSION OF TIME TO
COMPLY WITH JUDGMENT;
ORDER
Hearing Date and Time:
January 27, 2026, at 10:30 a.m.
NOTICE OF MOTION
PLEASE TAKE NOTICE that Defendants—the U.S. Fish and Wildlife Service (the
“Service”), Brian Nesvik, in his official capacity as the Director of the Service, and Doug Burgum,
in his official capacity as Secretary of the U.S. Department of the Interior—hereby move under
Federal Rule of Civil Procedure 60(b)(5) and (6) for a 43-day extension of the June 3, 2026,
Case 3:25-cv-01360-LJC Document 47 Filed 12/23/25 Page 1 of 8

UNOPPOSED M OTION FOR 43-DAY EXTENSION OF TIME TO COMPLY WITH JUDGMENT – 3:25-
01360-JLC 	2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
deadline for Defendants to submit for publication in the Federal Register a finding under 16 U.S.C.
§ 1533(b)(3)(B) on Plaintiffs’ petition to list the San Francisco Estuary population of white
sturgeon as threatened. Plaintiffs do not oppose this Motion. A hearing on this unopposed Motion
is set for January 27, 2026, at 10:30 a.m.
The June 3, 2026, deadline was ordered by the Court in its final judgment (Dkt. No. 33)
and September 3, 2025, order (Dkt. No. 32). By this Motion, Defendants respectfully request relief
from the final judgment and order in the form of a 43-day extension of the deadline to account for
the duration of a lapse in appropriations to the Service, which interrupted the Service’s work
towards completing the finding. If this Motion is granted, the deadline would be extended to July
16, 2026. In support of this Motion, Defendants submit the points and authorities below and the
attached declaration of Gina Shultz, the Service’s Acting Assistant Director for Ecological
Services.
POINTS AND AUTHORITIES IN SUPPORT OF MOTION
I. 	Introduction and Background
This case concerns the Service’s obligation to make a finding under Section 4(b)(3)(B) of
the Endangered Species Act, 16 U.S.C. § 1533(b)(3)(B), on Plaintiffs’ petition to list the San
Francisco Estuary population of white sturgeon as threatened. On September 3, 2025, the Court
issued Findings of Fact and Conclusions of Law, ordering Defendants to “submit that finding no
later than June 3, 2026 (nine months from the date of this Order) for publication in the Federal
Register.” Dkt. No. 32 at 18. The Court reasoned that a nine-month timeline was “presumptively
feasible” and consistent with the statute’s timeline. Id. at 17. On the same day, the Clerk of the
Court entered the final judgment in this case, also ordering Defendants to “submit a finding under
16 U.S.C. § 1533(b)(3)(B) on the petition at issue no later than June 3, 2026 for publication in the
Federal Register.” Dkt. No. 33.
Under Federal Rule of Civil Procedure 60(b)(5) and (6), Defendants respectfully request
relief from the final judgment and September 3, 2025, order to account for the 43-day lapse in
appropriations to the Service that lasted from October 1 through November 12, 2025. The lapse
Case 3:25-cv-01360-LJC Document 47 Filed 12/23/25 Page 2 of 8

UNOPPOSED M OTION FOR 43-DAY EXTENSION OF TIME TO COMPLY WITH JUDGMENT – 3:25-
01360-JLC 	3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
in appropriations—unforeseen and beyond Defendants’ control—caused the Service to cease work
on the finding. In short, for 43 days, work on the finding was not just infeasible but impossible.
Plaintiffs do not oppose the requested extension.
II. 	Standard for Relief from a Final Judgment or Order
Under Federal Rule of Civil Procedure 60(b)(5) and (6), a court may relieve a party from
a final judgment or order if, as relevant here, “applying it prospectively is no longer equitable,”
Fed. R. Civ. P. 60(b)(5), or for “any other reason that justifies relief,” Fed. R. Civ. P. 60(b)(6).
For a motion for equitable relief under Rule 60(b)(5), the Ninth Circuit applies the “flexible
standard” set forth in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 368 (1992). SEC v.
Coldicutt, 258 F.3d 939, 942 (9th Cir. 2001) (citing Rufo and Bellevue Manor Assocs. v. United
States, 165 F.3d 1249, 1255 (9th Cir. 1999)). 	The Rufo standard “allows courts to fulfill their
traditional equity role” by “tak[ing] all the circumstances into account in determining whether to
modify or vacate a prior injunction.” Bellevue, 165 F.3d at 1256; Calif. v. U.S. Envt’l Protection
Agency, 978 F.3d 708, 713 (9th Cir. 2020). 	The standard provides that a party seeking
modification to a court order need only establish that a “significant change in facts or law warrants
a revision of the decree and that the proposed modification is suitably tailored to the changed
circumstances.” Rufo, 502 U.S. at 393; Coldicutt, 258 F.3d at 942. Modification is thus warranted
when “changed factual conditions make compliance with the decree substantially more onerous”
or “when a decree proves to be unworkable because of unforeseen obstacles.” Coldicutt, 258 F.3d
at 942 (quoting Rufo, 502 U.S. at 384). 	Modification is not just warranted but required if
“compliance becomes legally impermissible.” Id. (citing Rufo, 502 U.S. at 388).
For a motion under Rule 60(b)(6), a party must show “extraordinary circumstances” to
justify relief. Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (citing Ackermann v. United States,
340 U.S. 193, 199 (1950)); Martinez v. Shinn, 33 F.4th 1254, 1262 (9th Cir. 2022) (citing
Gonzalez). In determining whether extraordinary circumstances are present, a court must engage
in a “case-by-case inquiry that requires the trial court to intensively balance numerous factors,
including the competing policies of the finality of judgments and the incessant command of the
Case 3:25-cv-01360-LJC Document 47 Filed 12/23/25 Page 3 of 8

UNOPPOSED M OTION FOR 43-DAY EXTENSION OF TIME TO COMPLY WITH JUDGMENT – 3:25-
01360-JLC 	4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
court’s conscience that justice be done in light of all the facts.” Hall v. Haws, 861 F.3d 977, 987
(9th Cir. 2017) (citations omitted); see also Buck v. Davis, 580 U.S. 100, 123 (2017) (court may
consider “wide range” of factors).
III. 	Argument
Following the September 3, 2025, judgment in this case, the Service has been diligently
working to meet the Court’s June 3, 2026, deadline for a finding on the San Francisco Estuary
population of white sturgeon. Declaration of Gina Shultz (“Shultz Decl.”) ¶ 3. Consistent with
the Court’s order, the Service developed a compressed nine-month timeline for its internal
processes so that the agency could meet the court-ordered deadline. Id.
As part of this nine-month process, the Service immediately convened a core team of three
biologists and one statistician in the San Francisco Bay-Delta Fish and Wildlife Office to conduct
the Species Status Assessment (“SSA”), which is the “rigorous scientific analysis of the biological
condition and viability of the San Francisco Estuary population of white sturgeon and forms the
biological basis for the Service’s internal decision-making.” Id. ¶ 4; see also Dkt. No. 26-1 ¶¶ 9-
11 (declaration of Donald Ratcliff describing purpose of SSA framework and resulting SSA report
in the context of the Service’s 12-month finding process). To ensure completion of the SSA under
the compressed timeline, the Service selected staff who already have “extensive background
knowledge and understanding of the San Francisco Estuary and expertise in biological modeling
necessary to prepare the statistical analysis of the population status and trajectory.” Shultz Decl.
¶ 4. In September and early October, as part of the SSA process, the core team sent letters to tribal,
state, and other interested parties requesting relevant information; initiated a thorough review of
the relevant scientific literature; and discussed and refined the analytic approach for modeling the
population. Id.
At the end of the day on September 30, 2025, the appropriations act that had been funding
the Service expired and those appropriations to the Service lapsed. Dkt. No. 36 at 2; Shultz Decl.
¶ 5. Once appropriations lapsed, employees of the Service could not work on the finding, even on
a voluntary basis, except in very limited circumstances, including “emergencies involving the
Case 3:25-cv-01360-LJC Document 47 Filed 12/23/25 Page 4 of 8

UNOPPOSED M OTION FOR 43-DAY EXTENSION OF TIME TO COMPLY WITH JUDGMENT – 3:25-
01360-JLC 	5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
safety of human life or the protection of property.” See 31 U.S.C. § 1342; see also Environmental
Def. Ctr. v. Babbitt, 73 F.3d 867, 871-72 (9th Cir. 1995) (holding that “lack of available
appropriated funds prevents the Secretary from complying with the [Endangered Species] Act”);
Shultz Decl. ¶ 5. 	Accordingly, the staff on the core team were prohibited from working on the
determination and ceased working on Plaintiffs’ petition after sending out some of the interested
party letters on October 2, 2025, as part of completing all the administrative steps to ensure an
orderly shutdown. 	Shultz Decl. ¶ 5. 	Funding was not restored until 43 days later, late in the
evening on November 12, 2025. Dkt. No. 40; Shultz Decl. ¶ 5. This lapse in appropriations was
beyond the Service’s control and unforeseeably halted the agency’s work towards completing the
white sturgeon finding.
Once appropriations were restored, the team promptly resumed its work, including sending
letters to federal parties requesting information that the Service should consider during preparation
of the assessment. Shultz Decl. ¶ 6. However, the 43-day appropriations lapse and resulting loss
of working days has created a backlog of the Service’s required work and of revising deadlines,
including other court-ordered deadlines. Id. ¶ 7. The end result is that the Service has significantly
less capacity and time to meet the June 2026 deadline than intended by the Court or contemplated
by the Endangered Species Act.
The Court set the deadline based a nine-month timeframe, deeming nine months as
“presumptively feasible” based on “the schedule Congress has set in the ESA.” Dkt. No. 32 at 17
(“[T]he statutory schedule contemplates that the remaining work after the ninety-day decision
should take no more than nine months.”). 	But the unforeseen lapse in appropriations made it
infeasible—impossible in fact—for the Service to work on the finding for a significant portion of
the timeframe. 	Indeed, the appropriations lapse was akin to a “complete funding freeze” by
Congress, which the Court has recognized “render[s] compliance truly impossible.” Dkt. No. 32
at 13 (citing Environmental Defense Center. v. Babbitt, 73 F.3d 867 (9th Cir. 1995)); see also
Babbitt, 73 F.3d at 871-72 (in-house review and decisionmaking would necessarily require use of
appropriated funds, but the “government cannot make expenditures, and therefore cannot act, other
Case 3:25-cv-01360-LJC Document 47 Filed 12/23/25 Page 5 of 8

UNOPPOSED M OTION FOR 43-DAY EXTENSION OF TIME TO COMPLY WITH JUDGMENT – 3:25-
01360-JLC 	6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
than by appropriation”).
Without an extension, the Service will have only seven-and-a-half months to complete
work that it had planned to accomplish over nine months to comport with the Court’s timeframe.
Under Rule 60(b)(5), Defendants have shown a significant change in factual conditions warranting
an extension of 43 days to restore the Court’s intended timeframe. See Coldicutt, 258 F.3d at 942.
The appropriations lapse made the Service’s ability to comply with the Court’s order “legally
impermissible” for a period of time. Coldicutt, 258 F.3d at 942. And even though appropriations
have been restored, the Service’s ability to comply has been made “substantially more onerous”
and “unworkable because of unforeseen obstacles” because the appropriations lapse effectively
shortened the Court’s nine-month timeframe by more than a month, making the June 2026 deadline
“no longer equitable,” Fed. R. Civ. P. 60(b)(5). Moreover, the length of the extension is “suitably
tailored to the changed circumstance.” Flores v. Lynch, 828 F.3d 898, 909 (9th Cir. 2016) (citing
Rufo, 502 U.S. at 383). 	Cognizant of the Court’s directive to complete internal processes in
sufficient time to meet a nine-month timeframe, Defendants request only the exact number of days
necessary to restore the original timeframe allotted by the Court.
Even if the Court does not apply Rule 60(b)(5), the Court may, in its equitable discretion,
extend 	the 	deadline 	under 	Rule 	60(b)(6). 	The 	43-day 	lapse 	in 	appropriations 	presents
“extraordinary circumstances” warranting a commensurate extension. See Gonzalez, 545 U.S. at
535. Defendants should not be hindered in their diligent efforts to comply with the Court’s order
due to an unforeseen situation beyond their control. See Ackermann, 340 U.S. at 199 (recounting
example of extraordinary situation that “cannot fairly or logically be classified as mere ‘neglect’”).
Such extraordinary circumstances justify a limited extension commensurate with the number of
days lost to the appropriations lapse.
IV. 	Conclusion
For all the reasons above, Defendants respectfully request that the Court grant relief under
Rule 60(b)(5) or (6) from the final judgment and September 3, 2025, order and extend the Service’s
June 3, 2026, deadline by 43 days to July 16, 2026.
Case 3:25-cv-01360-LJC Document 47 Filed 12/23/25 Page 6 of 8

UNOPPOSED M OTION FOR 43-DAY EXTENSION OF TIME TO COMPLY WITH JUDGMENT – 3:25-
01360-JLC 	7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dated: December 22, 2025 	Respectfully submitted,
ADAM R.F. GUSTAFSON
Principal Deputy Assistant Attorney General
U.S. Department of Justice
Environment and Natural Resources Division
MEREDITH L. FLAX, Deputy Section Chief
NICOLE M. SMITH, Assistant Section Chief
/s/ Angela Mo
ANGELA MO, Trial Attorney
CA Bar No. 262113
Wildlife and Marine Resources Section
P.O. Box 7611, Ben Franklin Station
Washington, D.C. 20044
Tel: (202) 353-5129
Fax: (202) 305-0275
E-mail: Angela.Mo@usdoj.gov
Attorneys for Defendants
Case 3:25-cv-01360-LJC Document 47 Filed 12/23/25 Page 7 of 8

UNOPPOSED M OTION FOR 43-DAY EXTENSION OF TIME TO COMPLY WITH JUDGMENT – 3:25-
01360-JLC 	8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER
UPON UNOPPOSED MOTION BY DEFENDANTS AND PURSUANT TO FED. R.
CIV. P. 60(b)(5) AND/OR 60(b)(6):
1. 	Defendants’ Unopposed Motion for 43-Day Extension of Time to Comply with
Judgment is GRANTED.
2. 	The Court relieves Defendants from the June 3, 2026, deadline ordered in the
Court’s final judgment (Dkt. No. 33) and September 3, 2025, order (Dkt. No. 32). Defendants
are hereby ORDERED and ENJOINED to submit for publication in the Federal Register a
finding under 16 U.S.C. § 1533(b)(3)(B) on Plaintiffs’ petition to list the San Francisco Estuary
population of white sturgeon as threatened no later than July 16, 2026.
IT IS SO ORDERED.
Dated: December 23, 2025 ____________________________
THE HON. LISA J. CISNEROS
United States Magistrate Judge
Case 3:25-cv-01360-LJC Document 47 Filed 12/23/25 Page 8 of 8