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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CONSERVATION CONGRESS,
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Plaintiff,
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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,
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Federal
Defendants, and
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TRINITY RIVER LUMBER CO.,
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DefendantIntervenor.
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This matter is before the Court on the U.S. Forest Service
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and U.S. Fish and Wildlife Service’s (“Federal Defendants”)
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Motion to Strike a declaration Conservation Congress
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(“Plaintiff”) submitted in support of its Motion for Summary
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Judgment and three paragraphs in two of Plaintiff’s other
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declarations. 1 (ECF No. 107) For the reasons stated below, this
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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.
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Court GRANTS the motion.
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I.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
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Plaintiff filed this lawsuit against Federal Defendants for
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alleged violations of the National Environmental Policy Act, the
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National Forest Management Act, and the Endangered Species Act.
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Specifically, Plaintiff challenges Federal Defendants’ decisions
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with respect to the Smokey Project, a timber sale that will
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affect a section of the Mendocino National Forest that Northern
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spotted owls are known to inhabit.
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No. 65.
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Second Amended Complaint, ECF
On April 5, 2016, this Court heard oral arguments on
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Plaintiff’s Motion for Order Regarding Scope of Review.
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76.
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with extra-record evidence, including a declaration from Tonja
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Chi.
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took the motion under submission and ordered the parties to
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submit supplemental briefing.
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Plaintiff submitted its Statement of Response to Court’s April 5,
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2016 Order in which it stated: “Conservation Congress reviewed
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the utility of submitting declarations in support of its
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Endangered Species Act citizen’s suit claims against Defendant
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United States Forest Service.
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Conservation Congress has determined that it will no longer
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request the Court to consider extra-record declarations in this
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matter.”
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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.
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It submitted declarations
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from Denise Boggs, Douglas Bevington, and Ellen Drell in support
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of Plaintiff’s standing.
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declaration is from wildlife biologist Tonja Chi.
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this declaration in support of one of its Endangered Species Act
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claims.
See Mot. for Sum. J. at 8.
The fourth
Plaintiff uses
Id. at 29.
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II.
OPINION
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Federal Defendants argue, inter alia, that Plaintiff should
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not be permitted to submit the Chi Declaration because Plaintiff
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chose not to submit supplemental briefing in response to the
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Court’s April 5th Order.
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Plaintiff explicitly stated that it would not seek to admit
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extra-record declarations.
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previously submit the Chi Declaration to the Court, [because] it
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is based on events that occurred during the month of July 2016
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and [] could not have been produced earlier.”
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at 29.
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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
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“request the Court to consider extra-record declarations in this
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matter.”, Statement at 2, and
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of Court before filing the Chi Declaration, the Court holds
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Plaintiff to its prior representation and grants Federal
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Defendants’ request to strike the Chi Declaration.
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Plaintiff’s failure to seek leave
Federal Defendants also move this Court to strike paragraphs
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11 and 12 from Denise Boggs’ Declaration and paragraph 10 from
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Ellen Drell’s Declaration.
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not oppose this request.
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to Defendants’ Mot. to Strike, ECF No. 113.
Mot. to Strike at 5.
Plaintiff did
See Plaintiff’s Mem. Br. in Opposition
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As such, the Court
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will also grant the motion with respect to those paragraphs.
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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
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congestion on the present hearing date, the hearing on the
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motions for summary judgment, scheduled for December 13, 2016, is
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vacated.
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The Court specially sets the hearing on these motions
for January 26, 2017, at 10:00 AM.
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IT IS SO ORDERED.
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Dated:
December 5, 2016
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