Center for Biological Diversity, et al. v. Skalski, et al.

Filing 51

ORDER signed by Judge Garland E. Burrell, Jr. on 9/17/2014 DISPUTE RE WHETHER The Administrative Record should be supplemented; ORDERING 48 Since the TRO has been denied, and no matter is pending requiring decision on Plaintiffs' Motion to Supplement the Administrative Record at this time, the issue is not addressed. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CENTER FOR BIOLOGICAL
DIVERSITY, EARTH ISLAND
INSTITUTE, and CALIFORNIA
CHAPPARAL INSTITUTE,

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DISPUTE RE WHETHER THE
ADMINISTRATIVE RECORD SHOULD BE
SUPPLEMENTED

Plaintiffs,

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No. 1:14-cv-01382-GEB-GSA

v.
SUSAN SKALSKI, in her
official capacity as Forest
Supervisor for the Stanislaus
National Forest, and UNITED
STATES FOREST SERVICE, an
agency of the Department of
Agriculture,
Defendants.

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On September 17, 2014, Defendants United States Forest

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Service

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Motion to Supplement the Administrative Record, in which they

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state:

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and

Susan

Skalski

filed

an

Opposition

to

Plaintiffs’

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On September 16, the Court denied the
Plaintiffs’ motion for an injunction. Since
the opinion does not rule on Plaintiffs’
request to supplement the administrative
record, Federal Defendants are filing this
opposition in compliance with the Court’s
previous scheduling order, ECF 36.

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(Opp’n to Mot. to Supplement Administrative Record (“AR”) 1 n. 1,

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ECF No. 49 (citation omitted).)

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Later on September 17, 2014, Plaintiffs filed a Reply,
in which they state, inter alia:

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As an initial matter, yesterday’s “Order
Denying Plaintiffs’ Motion For Temporary
Restraining Order” highlights why this Court
should
grant
Plaintiffs’
Motion
to
Supplement. In that Denial, this Court
misunderstood Clark (2007), which directly
demonstrates
why
the
declarations
are
necessary
for
this
Court
to
address
Defendants’ NEPA obligations in this case as
it moves forward.

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. . . .

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Had this Court utilized the Bond Declaration,
as it should, to help it with difficult
technical matters, it would understand what
Clark (2007) actually shows, and would not be
in the position of attempting, on its own, to
interpret scientific data that was ignored or
misrepresented by Defendants, and which is
properly
explained
for
the
Court
by
scientific experts, such as owl expert Monica
Bond.

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. . . .

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[Other] errors can be avoided if the Court
allows itself to use the expert declarations
of Monica Bond, Derek Lee, and Dominick
DellaSala. We therefore respectfully urge the
Court to accept the declarations for what
they are—helpful aids for the Court in
understanding difficult technical material.
They clearly are needed and should therefore
be allowed.

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(Pls.’ Reply in Supp. of Mot. to Supplement AR, 3:18-21, 4:6-10,

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ECF No. 50 (emphasis added).)

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To the extent either or both of these filings indicate

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the Court did not consider the Declarations of Monica Bond, Derek

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Lee, and Dominick DellaSala in connection with Plaintiffs’ Motion

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for Temporary Restraining Order, the parties are referred to the

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following

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Plaintiffs’ Motion for a Temporary Restraining Order:

portion

of

the

September

2

16,

2014

Order

Denying

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Plaintiffs
move
“to
supplement
the
administrative record in this case with the
declarations of Monica Bond, Derek Lee, and
Dominick
DellaSalla.”
(Pls.’
Mot.
to
Supplement the AR 2:7-8, ECF No. 32.)
However,
“[e]ven
considering
the
declarations, the [TRO] is denied at this
time. Therefore, the Court [need not decide
the motion to supplement the administrative
record when deciding whether to issue a
TRO.]” Willis v. Buffalo Pumps Inc., No.
12cv744 BTM (DHB), 2014 WL 1028437, at *3 n.1
(S.D. Cal. Mar. 17, 2014) (declining to reach
evidentiary objections raised in connection
with motion for summary judgment); accord
Hernandez v. City of Oakley, No. C-11-02415
JCS, 2012 WL 5411781, at *3 n.4 (N.D. Cal.
Nov. 6, 2012) (“The Court need not reach this
[evidentiary]
objection
because,
even
assuming these [deposition] excerpts are
admissible, it finds in favor of Defendants
as to all of the remaining claims in this
action.”).

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(Order 2, n.3, ECF No. 48 (emphasis added).)
Since the TRO has been denied, and no matter is pending

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requiring

decision

on

Plaintiffs’

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Administrative Record at this time, the issue is not addressed.

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Dated:

September 17, 2014

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3

Motion

to

Supplement

the