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<br />48 F. Supp. 2d 1303, *; 1999 U.S. Dist. LEXIS 7198, **;
<br />48 ERC (BNA) 1753
<br />increase water yields 249,000 acre-feet per year over
<br />existing levels. (Pl.'s Opp'n to Mot. to Dismiss, Ex. 4.)
<br />He concludes that this additional water would benefit the
<br />listed species in Nebraska. Id. Additionally, Plaintiff
<br />generally alleges that increased water would help the
<br />endangered species. At the motion to dismiss stage, this
<br />is sufficient to satisfy redressability. n5
<br />n5 The Court notes that if this was a motion
<br />for summary judgment, Plaintiff may not have
<br />satisfied standing because grave issues about the
<br />likelihood of water reaching species 300 miles
<br />away exist.
<br />n6 Defendants argued that because this Court
<br />is dealing with agency action in this case, this
<br />lawsuit must be brought under the Administrative
<br />Procedure Act. However, courts have recognized
<br />that the 60 day notice provision is effectively a
<br />waiver of exhaustion. See Silver v. Babbitt, 924
<br />F. Supp. 976, 987 (D. Ariz. (1995). The plaintiff
<br />has complied with the 60 day notice requirement
<br />in this case. Thus, the defendants' arguments that
<br />Plaintiff must comply with the procedures set
<br />forth in Olenhouse v. Commodity Credit Corp.,
<br />42 F.3d 1560 (IOth Cir. 1994), must fall short.
<br />The ESA has set forth a procedure where litigants
<br />can file their suit directly in court, rather than
<br />going through the administrative adjudication
<br />process. See Silver, 924 F. Supp. at 987.
<br />Therefore, Defendants' motion to dismiss on this
<br />ground must be DENIED.
<br />III. Ripeness
<br />The Biodiversity Parties have moved to dismiss
<br />Plaintiff s ESA claims because they are not ripe. Ripeness
<br />is a concept that is said to contain both constitutional and
<br />prudential [**24] considerations. See Erwin
<br />Chemerinsky, Federal Jurisdiction § 2.4, at 116 (2d ed.
<br />1994). The doctrine is constitutional because whether a
<br />case is ripe is inextricably intertwined with the case ar
<br />controversy requirement. See id.
<br />Abbott Laboratories v. Gardner is the perennial case
<br />in this area. 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d
<br />681 (1967), overruled on other gounds by Califano v.
<br />Sanders, 430 U.S. 99, SI L. Ed. 2d 192, 97 S. Ct. 980
<br />(1977). In that case, the Supreme Court articulated the
<br />standard for ripeness that is used to this day: "The
<br />problem is best seen as a twofold aspect, requiring us to
<br />evaluate ... [1] the fimess of the issues for judicial
<br />decision and [2] the hardship to the parties of
<br />withholding court consideration." 387 U.S. at 149.
<br />As a preliminary matter, Plaintiff has argued that the
<br />ripeness doctrine is not applicable to this case. This
<br />Court must disagee. Plaintiff argues that because it has
<br />brought this suit pursuant to the citizen suit provision of
<br />the ESA, 16 U.S.C. § 1540(g)(1)(A) (1994), the proper
<br />standard for determining whether this case is proper for
<br />adjudication is found in Forest Conservation Council v.
<br />Rosboro Lumber Co., SO F.3d 781 (9th [**25] Cir.
<br />1995). While the Court agrees that the citizen suit
<br />provision negates Defendants' argument on exhaustion,
<br />n6 it does not agree that the ripeness doctrine is
<br />inapplicable to this case.
<br />Plaintiffs reliance on Rosboro Lumber Co. for the
<br />stated [**26] proposition is misplaced. [*1313] In that
<br />case, the district court had concluded that the ESA
<br />requires a plaintiff to show either a past or current injury
<br />to a protected species. See 50 F.3d at 783. The court of
<br />appeals disagreed, fmding that the statutory scheme of
<br />the ESA clearly showed that imminent threats to wildlife
<br />were also actionable; that is, the ESA was designed to
<br />prevent future harm to animals as well. See id. at 784-86.
<br />The Court does not disagree with the Ninth Circuit's
<br />conclusion in that case, but that is not the issue in the
<br />case at bar. In the case at bar, the issue is whether this
<br />controversy is ripe for judicial review. As previously
<br />stated, ripeness is, in part, a constitutional limitation
<br />emanating from the case and controversy requirement of
<br />Article III. The Court thus finds that the ripeness doctrine
<br />is very applicable here, especially when one looks to the
<br />Supreme Court case of Ohio Forestry Association v.
<br />Sierra Club, 523 U.S. 726, 118 S. Ct. 1665, 140 L. Ed.
<br />2d 921 (1998).
<br />Ohio Forestry involves the very same issues that are
<br />present in this case, the only difference being that Ohio
<br />Forestry came before the Court via a different vehicle,
<br />the [**27] APA, not the ESA. See Sierra Club v.
<br />Robertson, 845 F. Supp. 485, 488 (S.D. Ohio 1994),
<br />rev'd sub nom. Sierra Club v. Thomas, 105 F.3d 248
<br />(6th Cir. 1997), vacated sub nom. by Ohio Forestry v.
<br />Sierra Club, 523 U.S. 726, 118 S. Ct. 1665, 140 L. Ed.
<br />2d 921. In Ohio Forestry, the Sierra Club challenged the
<br />Forest Plan for the Wayne National Forest in southern
<br />Ohio. See 118 S. Ct. at 1668. The Sierra Club challenged
<br />the Forest Plan because it favored logging and
<br />clearcutting in violation of the National Forest Land
<br />Management Act. See id. at 1669. However, a unanimous
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