Center for Sierra Nevada Conservation, et al., v. United States Forest Service, et al

Filing 69

ORDER signed by Senior Judge Lawrence K. Karlton on 4/19/11 ORDERING Plaintiffs MAY file a brief on this aspect of their ESA claim. Said brief may not exceed 10 pages, and may be filed no later than 5 p.m. on Monday, April 25. Defendants MAY file an opposition brief addressing the same issues. Said brief may not exceed 10 pages, and may be filed no later than 5 p.m. on Monday, May 2. Plaintiffs MAY file a reply brief, not to exceed 5 pages, no later than 9 a.m. on Thursday, May 5.(Matson, R)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

CENTER FOR SIERRA NEVADA
CONSERVATION, et al.,
NO. CIV. S-09-2523 LKK/JFM

11

Plaintiff,

12

v.
O R D E R

13

UNITED STATES FOREST SERVICE,
et al.,

14
Defendants.
15

/

16

On Monday, April 18, 2011, the court heard oral argument on

17

the parties’ cross motions for summary judgment.

18

issue arises under the Endangered Species Act (“ESA”), 16 U.S.C.

19

§ 1531 et seq. The Forest Service contends that it complied with

20

the

21

programmatic consultation, which describes various design criteria

22

for routes.

23

in part “In suitable California red-legged frog habitat, routes

24

avoid Riparian Reserve and Riparian Conservation Areas except where

25

necessary to cross streams.” See, e.g., Administrative Record (AR)

26

12,871.

ESA’s

consultation

requirement

by

adhering

One claim at

to

a

2006

At issue in this suit is criterion #2, which provides

1

1

At oral argument, plaintiffs argued that the Forest Service’s

2

application of this criterion was arbitrary and capricious in part

3

because the Forest Service excluded ephemeral streams from its

4

analysis, despite the asserted fact that the Sierra National Forest

5

Plan Amendments define Resource Conservation Areas to include areas

6

near ephemeral streams.

7

Having

reviewed

the

papers,

the

court

concludes

that

8

plaintiffs outlined this argument in their opening brief.

See

9

Plaintiffs’ Opening Brief (Dkt. No. 52-1) at 25 (citing AR 10,979),

10

29 (citing AR 2,534, 2,681).

11

waived by litigation conduct.1

The court nonetheless agrees with

12

defendants’

this

13

presented, such that defendants cannot be faulted for failing to

14

respond to it.

15

briefing on this issue.

contention

that

This argument therefore has not been

argument

was

incompletely

Accordingly, the court requests supplemental

16

Plaintiffs MAY file a brief on this aspect of their ESA claim.

17

Said brief may not exceed ten (10) pages, and may be filed no later

18

than 5 p.m. on Monday, April 25.

19

Defendants MAY file an opposition brief addressing the same

20

issues. Said brief may not exceed ten (10) pages, and may be filed

21

no later than 5 p.m. on Monday, May 2.

22

////

23

////

24
1

25
26

The court expresses no opinion in this order as to whether
plaintiffs administratively exhausted this argument or whether the
exhaustion requirement contained in 7 U.S.C. § 6912(e) applies to
this or any other ESA claim.
2

1
2

Plaintiffs MAY file a reply brief, not to exceed five (5)
pages, no later than 9 a.m. on Thursday, May 5.

3

IT IS SO ORDERED.

4

DATED:

April 19, 2011.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3