Conservation Congress v. United States Forest Service

Filing 34

ORDER signed by Judge Lawrence K. Karlton on 7/12/2013. Defendant shall, within 15 days of Order, file a Brief not exceeding 15 pages in length, advising Court whether or not, in its view, the 31 Notice regarding Fish and Wildlife Service Response (and Exhibits), is relevant to issue of "consultation". If so, explain why its recently-submitted correspondence with FWS qualifies as consultation. The Brief should also explain the distinction, if any, between a "consultation" a nd "technical assistance". Plaintiff shall, within 15 days of filing of defendant's Brief, file a response not exceeding 15 pages in length. Court is aware that defendant has voluntarily agreed not to implement, prior to 7/15/2013, any of the ground disturbing activities authorized by the Project, and to provide 72 hours notice before any such activities commence. In light of further Briefing Schedule, Court believes that further voluntary forbearance would be appropriate. Howev er, if defendant does not voluntarily forbear prior to 7/15/2013, Court ORDERS defendant refrain from any of the ground disturbing activities authorized by the Project, until no earlier than 30 days from date of plaintiff's response. If defendant voluntarily forbears for at least this period, this paragraph is VACATED with no further action required by either party. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS,
NO. CIV. S-13-0832 LKK/DAD
Plaintiff,

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v.

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O R D E R
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UNITED STATES FOREST
SERVICE,

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Defendant.
/

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Defendant has filed a Notice Regarding Fish and Wildlife

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Service Response.

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significance of this filing.
Defendant

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ECF No. 31.

may

be

The court is unclear about the

asserting

that

it

has

engaged

in

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“consultation” with the U.S. Fish & Wildlife Service (“FWS”),

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inasmuch as it asserts that it sent FWS a “June 17 request for

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consultation,” to which FWS responded on July 8. Id., at 2

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(emphasis added).

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the correspondence simply to complete the Administrative Record,

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and not to assert any substantive point.

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////

On the other hand, defendant may have submitted

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If in fact defendant has “consulted” with FWS, it would appear

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to be relevant to plaintiff’s claim that defendant failed to

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“consult” with FWS.1

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2013 letter that defendant relies upon states that it is requesting

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“technical assistance” of FWS.

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2013 FWS letter in response states that defendant’s letter “does

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not specify what is being requested” of FWS.

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FWS goes on to distinguish between a request for “technical

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assistance” and an informal “consultation.”

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However, the court notes that the June 17,

ECF No. 31-2 at 2.

The July 3,

ECF No. 31-2 at 8.

It wrote:

if you believe the Project may affect the northern
spotted owl, it is up to the U.S. Forest Service ... to
make such a determination and request concurrence from
the Service [the FWS] through the informal consultation
process. Alternatively, if you are asking for technical
assistance regarding the scientific soundness of your
analysis, we would be happy to provide the assistance.

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ECF No. 31-2 at 8 (emphasis added).

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it was seeking “technical assistance.”

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July 8, 2013 response states that it is a response to defendant’s

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request for “technical assistance.”

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FWS’s

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supported by the analysis provided,” but does not indicate whether

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or not it is giving its “concurrence” in defendant’s “No effect”

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determination.

response

concludes

that

Defendant then clarified that
ECF No. 31-2 at 9.

ECF No. 31-1 at 2.

defendant’s

FWS’s

Finally,

determination

“is

ECF No. 31-1 at 2-3.

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The court is aware of defendant’s position that this
consultation is not relevant in any case because only the
Endangered Species Act (“ESA”) contains such a requirement, and
there is no ESA claim here. The court is also aware of plaintiff’s
position that consultation is relevant because NEPA requires an
Environmental Impact Statement (“EIS”) – which defendant did not
prepare – if defendant’s proposed project threatens a violation of
the ESA (specifically, a violation of its consultation provision).
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The court accordingly will direct defendant to file a brief

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advising on the significance of its recent filing.

In order to

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provide sufficient time for this additional briefing, the court

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will temporarily enjoin defendant from going forward with the

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proposed Project.

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Accordingly:

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1.

Defendant shall, within 15 days of this order, file a

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brief not exceeding 15 pages in length, advising the court whether

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or not, in its view, the Notice Regarding Fish and Wildlife Service

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Response (ECF No. 31, and Exhibits), is relevant to the issue of

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“consultation,” and if so, explaining why its recently-submitted

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correspondence with FWS qualifies as consultation.

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should

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“consultation” and “technical assistance.”

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2.

also

explain

Plaintiff

the

shall,

distinction,

within

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if

days

any,

of

the

The brief
between

a

filing

of

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defendant’s brief, file a response not exceeding 15 pages in

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length;

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3.

The court is aware that defendant has voluntarily agreed

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not to implement, prior to July 15, 2013, any of the ground

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disturbing activities authorized by the Project, and to provide 72

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hours notice before any such activities commence.2 In light of the

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further

briefing

schedule,

the

court

believes

that

further

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Defendant has now advised the court that it plans to go
forward with a portion of the project on July 16, 2013 (ECF No.
33). Plaintiff shall, no later than July 15, 2013 at 12 noon,
advise the court whether or not it objects to the work proposed for
July 16th.
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voluntary forbearance would be appropriate. However, if defendant

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does not voluntarily forbear prior to July 15, 2013,

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ORDERS that defendant refrain from any of the ground disturbing

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activities authorized by the Project, until no earlier than thirty

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(30) days from the date of plaintiff’s response.

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voluntarily forbears for at least this period, this paragraph is

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VACATED with no further action required by either party.

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IT IS SO ORDERED.

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DATED:

July 12, 2013.

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the court

If defendant