Conservation Congress v. United States Forest Service et al

Filing 118

ORDER signed by District Judge John A. Mendez on 12/5/16 ORDERING that Defendants' 107 Motion to Strike is GRANTED. The hearing on 109 , 106 , 103 Motions for Summary Judgment is RESET for 1/26/2017 at 10:00 AM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Kastilahn, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CONSERVATION CONGRESS, 11 Plaintiff, 12 13 14 v. No. 2:13-cv-01977-JAM-DB ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE UNITED STATES FOREST SERVICE and UNITED STATES FISH AND WILDLIFE SERVICE, 15 Federal Defendants, and 16 TRINITY RIVER LUMBER CO., 17 DefendantIntervenor. 18 19 This matter is before the Court on the U.S. Forest Service 20 21 and U.S. Fish and Wildlife Service’s (“Federal Defendants”) 22 Motion to Strike a declaration Conservation Congress 23 (“Plaintiff”) submitted in support of its Motion for Summary 24 Judgment and three paragraphs in two of Plaintiff’s other 25 declarations. 1 (ECF No. 107) For the reasons stated below, this 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing is scheduled for December 13, 2016. 1 1 Court GRANTS the motion. 2 3 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 4 Plaintiff filed this lawsuit against Federal Defendants for 5 alleged violations of the National Environmental Policy Act, the 6 National Forest Management Act, and the Endangered Species Act. 7 Specifically, Plaintiff challenges Federal Defendants’ decisions 8 with respect to the Smokey Project, a timber sale that will 9 affect a section of the Mendocino National Forest that Northern 10 spotted owls are known to inhabit. 11 No. 65. 12 Second Amended Complaint, ECF On April 5, 2016, this Court heard oral arguments on 13 Plaintiff’s Motion for Order Regarding Scope of Review. 14 76. 15 with extra-record evidence, including a declaration from Tonja 16 Chi. 17 took the motion under submission and ordered the parties to 18 submit supplemental briefing. 19 Plaintiff submitted its Statement of Response to Court’s April 5, 20 2016 Order in which it stated: “Conservation Congress reviewed 21 the utility of submitting declarations in support of its 22 Endangered Species Act citizen’s suit claims against Defendant 23 United States Forest Service. 24 Conservation Congress has determined that it will no longer 25 request the Court to consider extra-record declarations in this 26 matter.” 27 28 ECF No. Plaintiff sought to supplement the administrative record See Exhibit 10 at Rows 11 & 16, ECF No. 76-10. ECF No. 83. The Court On April 12, 2016, As a result of that review, ECF No. 84. Plaintiff filed its Motion for Summary Judgment with four declarations attached. ECF No. 103. 2 It submitted declarations 1 from Denise Boggs, Douglas Bevington, and Ellen Drell in support 2 of Plaintiff’s standing. 3 declaration is from wildlife biologist Tonja Chi. 4 this declaration in support of one of its Endangered Species Act 5 claims. See Mot. for Sum. J. at 8. The fourth Plaintiff uses Id. at 29. 6 7 II. OPINION 8 Federal Defendants argue, inter alia, that Plaintiff should 9 not be permitted to submit the Chi Declaration because Plaintiff 10 chose not to submit supplemental briefing in response to the 11 Court’s April 5th Order. 12 Plaintiff explicitly stated that it would not seek to admit 13 extra-record declarations. 14 previously submit the Chi Declaration to the Court, [because] it 15 is based on events that occurred during the month of July 2016 16 and [] could not have been produced earlier.” 17 at 29. 18 Mot. to Strike at 1. Id. Further, Plaintiff contends it “did not Mot. for Sum. J. Given Plaintiff’s unequivocal statement that it would not 19 “request the Court to consider extra-record declarations in this 20 matter.”, Statement at 2, and 21 of Court before filing the Chi Declaration, the Court holds 22 Plaintiff to its prior representation and grants Federal 23 Defendants’ request to strike the Chi Declaration. 24 Plaintiff’s failure to seek leave Federal Defendants also move this Court to strike paragraphs 25 11 and 12 from Denise Boggs’ Declaration and paragraph 10 from 26 Ellen Drell’s Declaration. 27 not oppose this request. 28 to Defendants’ Mot. to Strike, ECF No. 113. Mot. to Strike at 5. Plaintiff did See Plaintiff’s Mem. Br. in Opposition 3 As such, the Court 1 will also grant the motion with respect to those paragraphs. 2 3 4 5 6 III. ORDER For the reasons set forth above, the Court GRANTS Defendants’ Motion to Strike. Due to the complex nature of this litigation and calendar 7 congestion on the present hearing date, the hearing on the 8 motions for summary judgment, scheduled for December 13, 2016, is 9 vacated. 10 The Court specially sets the hearing on these motions for January 26, 2017, at 10:00 AM. 11 IT IS SO ORDERED. 12 Dated: December 5, 2016 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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