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. ,.. • PAGE 16/30 <br />• <br />FIFTH CLAZM FOR REI2IEF <br />(Violation of 16 U.S.C. § 1536(4)(2) (ESA) - Against DOE) <br />54. Each and every allegation set forth in the Second <br />Amended Complaint is incorporated by reference. <br />55. According to FWS regulations, jeopardy results when it <br />is reasonable to expect that the action would ^reduce appreciably <br />the likelihood of both the survival and recovery of a listed <br />species in the wild by reducing [he reproduction, numbers, or <br />distribution of the species," 50 CFR 5 402.02. <br />56. Expansion of the sand and gravel mine in the Rocky <br />Flats' Buffer Zone is likely to jeopardize the continued <br />exi:;tence of the Preble's meadow jumping mouse and its habitat in <br />the Rock Creek drainage. <br />57. By allowing the mining company to expand its sand and <br />gravel mine in the Buffer Zone, assisting the mining company in <br />its pursuit of local and state approvals, and issuing license and <br />easements to the mining company for construction and use of roads <br />to f:~cilitate the mine expansion in the Suffer Zone, DOE's has <br />unlawfully withheld compliance with section 7(a)(21's ^no <br />jeopalydy• mandate within the meaning of the Administrative <br />ProcE:dure Act, 5 U.S.C. § 706(1). Consequently, DOE's actions, <br />which are likely to jeopardize the continued existence of the <br />Preble's mouse in violation of section 7(4)(2) of the ESA, are <br />arbitrary and capricious, an abuse of discretion, not in <br />accordance with the law, and without observance of procedures <br />required by law within the meaning of the Administrative <br />$ocond Amended Canptaint <br />16 <br />