Save the Peaks Coalition, et al. v. U.S. Forest Service et al

Filing 135

ORDER denying 39 Motion to Amend/Correct. Signed by Judge Mary H Murguia on 9/22/10.(KSP)

Save the Peaks Coalition, et al. v. U.S. Forest Service et al

Doc. 135

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

WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

The Save the Peaks Coalition, et al., Plaintiff, vs. United States Forest Service, et al.,, Defendant.

) ) ) ) ) ) ) ) ) ) ) )

No. CV 09-8163-PCT-MHM ORDER

Currently pending before the Court are Plaintiffs The Save the Peaks Coalition, Kristin Huisinga, Clayson Benally, Sylvan Grey, Don Fanning, Jeneda Bennally, Frederica Hall, Berta Benally, Rachel Tso, and Lisa Tso's ("Save the Peaks") Motion for Leave to Amend Complaint. (Doc 39). After reviewing the pleadings, the Court issues the following order. This lawsuit concerns challenges under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 - 4370d to the United States Forest Service's 2005 decision to allow Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership to upgrade its operations by making snow using Class A+ reclaimed wastewater. On July 20, 2010, the Court heard oral argument on the instant motion, along with Cross-Motions for Summary Judgment filed by the Save the Peaks Plaintiffs, (Doc. 74), Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership("the Snowbowl"), (Doc. 88), and Defendants United

Dockets.Justia.com

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

States Forest Service and Earl Stewart, in his official capacity as Forest Supervisor for the Coconino National Forest ("the Federal Defendants") (Doc. 92). Plaintiffs' Complaint was filed on September 21, 2009. (Doc 1). On December 23, 2009, this Court issued its Order Setting Rule 16 Case Management Conference. (Doc. 21). The Order Setting Rule 16 Case Management Conference explicitly required the parties to meet and confer on "whether any party expects to add additional parties to the case or otherwise amend pleadings." (Doc 21 at 2). This Order also noted that "[t]he Court fully intends to enforce the deadlines in the Case Management Order." (Id. at 4) (emphasis in the original). Pursuant to this order, the parties met and conferred in mid-January of 2010 and filed their Joint Case Management Report and Proposed Scheduling Order. (Doc. 23). In the Joint Case Management Report, the parties stipulated that "if Plaintiffs determine that additional parties or amendment to the pleadings are necessary, Plaintiffs shall file a motion with the Court to add additional parties or amend the pleadings no later than February 12, 2010." (Id. at 6) (emphasis in the original). The Court held the Case Management Conference on February 2, 2010, at which all counsel of record participated. (Doc. 27). Shortly thereafter, on February 8, 2010, the Court entered its Scheduling Order and established February 12, 2010,as the deadline for Plaintiffs to move to join parties and amend pleadings. (Doc. 28 at 2). The Scheduling Order also warned the parties that "[t]he Deadlines Are Real: The Court fully intends to enforce the deadlines in the Case Management Order." (Id. at 4). On February 24, 2010, almost two weeks after the Court's deadline passed, more than six months after the filing of the Complaint, Plaintiffs requested leave from the Court to Amend their Complaint to add one additional claim based on the purported existence of significant new information warranting preparation of a Supplemental Environmental Impact Statement by the United States Forest Service. (See Doc. 39). Although Plaintiffs seek to amend their Complaint under Rule 15 of the Federal Rules of Civil Procedure, Rule 15 does not provide the standards by which the Court should consider the Motion. In general, after a responsive pleading has been served, a party "may -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

amend its pleading only with . . . the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). In deciding whether justice requires granting leave to amend, factors to be considered include undue delay, bad faith or dilatory motive, futility of amendment, prejudice to the opposing party; and repeated failure to cure deficiencies by previous amendments. Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). However, once the district court has filed a pretrial scheduling order pursuant to Rule 16, as is the case here, the standards of Rule 16 control any future amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). In order to seek to modify the Rule 16 Scheduling Order, Plaintiff must show good cause and seek the Court's consent. See Fed. R. Civ. P. 16(b)(4). Good cause generally concerns the diligence of the party seeking the amendment, although prejudice to the party opposing the modification provides an additional reason to deny the motion. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000) (citing Johnson 975 F.2d at 609). Good cause exists when a deadline "cannot reasonably be met despite the diligence of the party seeking the extension." Fed. R. Civ. P. 16 Advisory Comm.'s Notes (1983 Am.). Carelessness is not a reason for a court to grant relief under the Rule. See Johnson, 975 F.2d at 609. The Court must first note that Plaintiffs' Motion solely argued that amendment of the Complaint is warranted under Rule 15. As noted, Rule 15 does not provide the correct legal standard. To the extent Plaintiffs have argued that good cause supports amendment, this position was set forth for the first time in their Reply brief. As the Parties are aware, legal arguments raised for the first time in reply are deemed waived. See United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). The rule that a moving party must present all of its evidence or raise all of its legal arguments in a substantive brief, rather than in reply, is grounded in the notion of fairness. Each time a moving party is permitted to raise new arguments or present new evidence in reply, absent the Court granting leave for the non-moving party to file a sur-reply brief, the non-moving party is essentially deprived of the opportunity to address these new contentions. Because -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

Plaintiffs did not specifically request that the Court modify its Scheduling Order pursuant to Rule 16 in the corpus of their Motion, failure to seek modification warrants denial of Plaintiffs' Motion, and the Court's inquiry need not go any further. See Johnson, 975 F.2d at 608-09; see also United States Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985), superceded by statute on other grounds as recognized in Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). Assuming that the Court can even properly consider the good cause arguments set forth in Plaintiffs' Reply brief, nothing in that document adequately explains why the additional claim relating to the alleged failure to consider significant new information was not part of Plaintiffs' original Complaint or part of a timely amendment pursuant to the deadlines in the Scheduling Order. The Record of Decision in this case was issued in February 2005. The litigation that followed in Navajo Nation v. United States Forest Serv., concluded when the United States Supreme Court denied the petition for writ of certiorari on June 8, 2009. See Navajo Nation v. United States Forest Serv., 129 S.Ct. 2763 (2009). Plaintiffs' Complaint was filed on September 21, 2009. No part of Plaintiffs' Reply brief indicates why the information that makes up the new claim was not available to Plaintiffs until sometime after February 12, 2010. The only reasonable explanation for such delay appears to be a lack a diligence. In addition, there is no explanation on the part of Plaintiffs as to why, when it became apparent that compliance with the Court's Scheduling Order was impractical, a timely request was not filed with the Court to extend the February 12, 2010 deadline. See UC Rest., LLC v. Maricopa County, 2007 U.S. Dist. LEXIS 9349, *10-11 (D. Ariz. Feb. 7, 2007) (Murguia, J.) (citing Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal 1999)). Such inaction also belies a lack of diligence. After carefully reviewing all relevant documents, the Court is of the firm opinion that Plaintiffs cannot show good cause under the Rule 16 standard, and as such, their attempt at amendment fails. Accordingly, IT IS HEREBY ORDERED denying Plaintiffs The Save the Peaks Coalition, Kristin -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

Huisinga, Clayson Benally, Sylvan Grey, Don Fanning, Jeneda Bennally, Frederica Hall, Berta Benally, Rachel Tso, and Lisa Tso's ("Save the Peaks") Motion for Leave to Amend Complaint. (Doc 39). DATED this 22nd day of September, 2010.

-5-