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259 F.3d 1244, *; 2001 U.S. App. LEXIS 17639, **;
<br />53 ERC (BNA) 1368; 31 ELR 20864
<br />new rule-making cycles, cf. Legalization Assistance
<br />Project v. INS, 976 F.2d 1198, 1207-08 (9th Cir. 1992)
<br />("If we allow the possibility that an agency may
<br />promulgate additional regulations in the future to dictate
<br />our decisions on ripeness, then an administrative agency's
<br />regulations could forever escape judicial review. The
<br />doctrine of ripeness is not intended to promote an absurd
<br />result."), vacated, 510 U.S. 1007 (1993); Ohio Envtl.
<br />Council v. United States Dist. Court, 565 F.2d 393, 398
<br />(6th Cir. 1977) ("If a plan became unenforceable every
<br />time ... a revision became a possibility, the entire
<br />enforcement procedure of the Clean Air Act would be
<br />crippled."), we are satisfied that is not occurring here.
<br />[*12521?_._ ---_ .? -? ------
<br />+? ~ Second, the Forest Service has not unreasonably
<br />i delayed a decision on whether to implement the proposed
<br />, management techniques. It is sensible for the Forest
<br />j Service to consider the issue in tandem with the
<br />i Cooperative Agreement parties and as a part of its new
<br />' forest plan. The Coalition asserts that we should not
<br />? consider the Cooperative Agreement since the Forest
<br />8 Service is not a signatory. As noted above, however, the
<br />1 [**20] Forest Service is participating in that process as a
<br />?"cooperating agency." This is particulariy appropriate
<br />I given that § 1536(a)(1), the provision at issue in the
<br />h lawsuit, requires federal agencies to carry out
<br />; conservation programs in consultation with the
<br />? Department of the Interior, which is a signatory to the
<br />? Cooperative Ageement. Both the Cooperative
<br />? Agreement and the forest-plan revisions anticipate final
<br />; action within a reasonable period of time given the
<br />• enormous complexity of the issues involved and the
<br />jobvious benefits of a coordinated approach.
<br />? Third, the district court found that the Platte River
<br />?species are not facing immediate jeopardy. This fmding
<br />not clearly erroneous. n12 Although the Coalition
<br />talleges that a loss of as little as ninety-eight gallons of
<br />Ewater from Medicine Bow would contribute
<br />incrementally to the species' loss of water, this is
<br />insufficient to allege immediate jeopardy to species three
<br />hundred miles away. The record reflects that the Forest
<br />?Service, through consultations with the Fish and Wildlife
<br />1Service, has sought to offset small water depletions (less
<br />than twenty-five acre-feet annually) by contributing $
<br />95,000 toward the development [**21] of Platte River
<br />Basin recovery efforts. We acknowledge that some of the
<br />Coalition's allegations about the plight of the Platte River
<br />species are disturbing. There is no doubt the species face
<br />a dire situation; their very presence on the lists of
<br />endangered and threatened species means that they are in
<br />danger of extinction in a significant portion of their range
<br />or are likely to face such a danger in the foreseeable
<br />future. See 16 U.S.C. § 1532(6), (20). Nonetheless, we
<br />Page 6
<br />cannot say that the district court committed clear error in
<br />fmding a lack of immediate jeopardy. On this record, the
<br />Coalition has not established that the Forest Service's
<br />inaction "has precisely the same impact on the rights of
<br />the parties as denial of relief," Thomas, 828 F.2d at 793,
<br />by placing the Platte River species in jeopardy of
<br />imminent extinction. Even while the Forest Service
<br />considers its options, the species retain strong protection
<br />against agency actions that are likely to jeopardize their
<br />continued existence or adversely modify their critical
<br />habitat. See 16 U.S.C. ,¢ 1536(a)(2).
<br />n12 As noted above, the district court
<br />properly considered evidence outside of the
<br />pleadings on this motion to dismiss for lack of
<br />subject-matter jurisdiction. Pringle, 208 F.3d at
<br />1222. We therefore review the district court's
<br />factual fmdings deferentially, Holt, 46 F.3d at
<br />1003, and in view of the full record, not just the
<br />complaint.
<br />[**22l
<br />3. There Is Little Immediate Impact from the Forest
<br />Service's Inaction
<br />As noted above, the district court found that the
<br />listed species do not face irrunediate harm from the
<br />Forest Service's inaction. On the record before us, we
<br />cannot say that this amounts to clear error. The Coalition
<br />also seems to assert that some of its members will be
<br />subjected to further restrictions on their water use while
<br />the Forest Service studies the issue. This does not tip the
<br />balance in favor of fmding ripeness. At best the
<br />immediate impact is uncertain. Given the lack of fmality
<br />and the factual issues implicated, the possibility of short-
<br />term water-use restrictions is not enough to make this
<br />case fit for immediate judicial resolution. [*1253]
<br />4. Resolution of These Issues Will Not Promote
<br />Effective Administration
<br />Finally, we conclude that addressing the merits of
<br />this case at the present time would not promote
<br />efficiency. To the contrary, the district court found that
<br />judicial involvement at this stage might impede the
<br />efforts of the Cooperative Agreement. The Deparhnent of
<br />the Interior and the Forest Service, with their specialized
<br />expertise, should be allowed a first chance to balance the
<br />competing [**23] interests at stake and choose a course
<br />of action. That decision, once it is fmal, can be reviewed
<br />by the courts more effectively and efficiently.
<br />5. Conclusion
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