Conservation Congress v. United States Forest Service et al

Filing 53

STIPULATION and ORDER signed by Judge John A. Mendez on 3/30/2015 ORDERING case STAYED. (Zignago, K.)

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JOHN C. CRUDEN
Assistant Attorney General
TYLER L. BURGESS, Trial Attorney
United States Department of Justice
Environment and Natural Resources Division
Natural Resource Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tel: [phone]
Fax: [phone]
[e-mail]
J. BRETT GROSKO, Trial Attorney
United States Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendants

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JAMES J. TUTCHTON (CA Bar No. 150908)
Tutchton Law Office, LLC
6439 E. Maplewood Ave.
Centennial, CO 80111
Tel: [phone]
[e-mail]
STUART NICHOLAS WILCOX (Pro Hac Vice)
Stuart Wilcox LLC
1840 Vine St. #5
Denver, CO 80206
Tel: [phone]
[e-mail]

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STEVEN SUGARMAN (Pro Hac Vice)
347 County Road 55A
Cerrillos, New Mexico 87010
Tel: [phone]
[e-mail]

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS,
Plaintiff,

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v.

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UNITED STATES FOREST
SERVICE, and the UNITED
STATES FISH AND WILDLIFE
SERVICE,

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Defendants,
TRINITY LUMBER CO.,

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Proposed
Defendant –
Intervenor.

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CASE NO. 2:13-cv-1977-JAM-DAD
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JOINT STIPULATION
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FOR STAY OF PROCEEDINGS
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Plaintiff Conservation Congress, by its undersigned

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counsel, and Defendants, the United States Forest Service
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(“Forest Service”) and United States Fish and Wildlife Service

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(“Fish and Wildlife Service”), by their undersigned counsel,

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hereby jointly stipulate to a stay of proceedings in this case

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and request the Court’s approval of the stipulation.

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Plaintiff challenges a Forest Service fuel reduction and
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timber sale project, the Smokey Project (the “Project”),

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proposed on the Mendocino National Forest. Plaintiff alleges

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that the Project will impact Northern spotted owls, a threatened

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species under the Endangered Species Act (“ESA”). Dkt. No. 27.

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Plaintiff also raised claims that the Forest Service violated

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the National Environmental Policy Act and the National Forest

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Management Act by approving the Project. Id. Plaintiff seeks to

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have the Court enjoin the Project from proceeding, among other

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relief.
On December 6, 2013, the parties jointly requested that the

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Court enter a stay of these proceedings to allow the Forest

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Service to reinitiate consultation with the Fish and Wildlife

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Service under the ESA on the Project. Dkt. No. 14. On December

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19, 2013, the Court stayed this case to allow the Defendants to

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complete their reinitiated consultation. Dkt. No. 15. On April

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9, 2014, the Forest Service submitted its Supplemental

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Biological Assessment to the Fish and Wildlife Service to

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request re-initiation of ESA consultation. Dkt. No. 23. On

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November 3, 2014, the Fish and Wildlife Service issued the

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Biological Opinion for the Project and transmitted it to the

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Forest Service on November 4, 2014. Id.
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Plaintiff filed a first amended complaint on February 4,
2015. Dkt. No. 27. Defendants’ answer to the first amended

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complaint was filed on March 18, 2015, and the parties’ Joint
Status Report is due April 1, 2015. Dkt. Nos. 38 & 45.
The Forest Service now intends to reinitiate ESA
consultation again to consider a recently-discovered Northern
spotted owl activity center. Plaintiff’s counsel has informed

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Defendants’ counsel that Plaintiff intends to amend its

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complaint again to revise its claims in light of this new

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information. In addition, the FWS may amend its biological

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opinion further following ESA consultation, and the Forest

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Service will consider whether its NEPA analysis remains valid.

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In light of these further activities, the Parties wish to

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avoid having the Court or Parties expend time and resources on

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claims that may become moot when the re-initiation of ESA

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consultation is complete. Accordingly, Plaintiff and Defendants

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respectfully stipulate to and request a further stay of these

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proceedings to preserve judicial resources and the Parties’

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resources. The Parties have included in this Stipulation a

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schedule for apprising the Court of the Parties’ respective

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positions and progress to efficiently manage the case.

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For these reasons, and for good cause shown, the Parties
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stipulate as follows and request that the Court approve this

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stipulation:

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1. The case is stayed and all current deadlines and due
dates are vacated.

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2. Until the ESA consultation is complete, the Defendants

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shall submit a status report apprising the Court of the status

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of the ESA consultation no later than 60 days after the date the

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case is stayed, and every 60 days thereafter until consultation
is complete.
3. The Forest Service will promptly transmit to Plaintiff a
copy of any new Biological Assessment that it prepares for
purposes of the re-initiated ESA consultation, as soon as

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reasonably possible after the document has been transmitted to

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the Fish and Wildlife Service. Likewise, as soon as the Fish and

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Wildlife Service transmits an appropriate consultation document

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to the Forest Service to complete the re-initiated consultation,

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a copy of that document shall be promptly provided to Plaintiff,

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and in any event no later than the Notice contemplated in
Paragraph 4 below.
4. Defendants will file a Notice with the Court and counsel
as soon as reasonably possible after Defendants have completed
the re-initiated ESA consultation (“Defendants’ Notice”). The

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stay will expire when Defendants’ Notice is filed.
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5. Plaintiff will file a Notice with the Court and counsel

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no later than 14 days after Defendants’ Notice is filed

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informing the Court and Defendants whether Plaintiff intends to

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file a second amended complaint regarding the Project

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(“Plaintiff’s Notice”).

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6. If no second amended complaint is filed, no later than

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14 days after Plaintiff’s Notice is filed, the Parties will file

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a Joint Status Report addressing the issues contemplated in the

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Court’s September 23, 2013 Order Requiring Joint Status Report.

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7. If Plaintiff’s Notice states that Plaintiff intends to
file a second amended complaint, its second amended complaint

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will be filed no later than 77 days after the date that

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Defendants’ Notice is filed. Defendants will file an answer or

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response no later than 21 days after the date the second amended

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complaint is filed. No later than 7 days after the filing of the

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answer to the second amended complaint, the Parties will file a

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Joint Status Report addressing the issues contemplated in the

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Court’s September 23, 2013 Order Requiring Joint Status Report.

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8. The Forest Service will maintain the suspension of

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operations on the Project until (a) 45 days after the final
summary judgment brief is filed; or (b) the Court rules on the

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parties’ summary judgment motions, whichever occurs first.
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For all the foregoing reasons, the Plaintiff and Defendants
request that the Court approve this Joint Stipulation for Stay

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of Proceedings.
Respectfully submitted this 25th day of March, 2015,

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/s/_Steven Sugarman_______________________
(signed by filer with written authorization
provided on March 25, 2015)
JAMES J. TUTCHTON (CA Bar No. 150908)
Tutchton Law Office, LLC
6439 E. Maplewood Ave.
Centennial, CO 80111
Tel: [phone]
[e-mail]
STUART NICHOLAS WILCOX
(Pro Hac Vice)
Stuart Wilcox LLC
1840 Vine St. #5
Denver, CO 80206
Tel: [phone]
[e-mail]

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STEVEN SUGARMAN
(Pro Hac Vice)
347 County Road 55A
Cerrillos, New Mexico 87010
Tel: [phone]
[e-mail]

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Attorneys for Plaintiff

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JOHN C. CRUDEN
Assistant Attorney General
/s/_Tyler L. Burgess___________________
TYLER L. BURGESS
Trial Attorney
United States Department of Justice
Environment and Natural
Resources Division
Natural Resource Section
Ben Franklin Station
P.O. Box 7611

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Washington, D.C. 20044-7611
Tel: [phone]
Fax: [phone]
[e-mail]

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SETH M. BARSKY, Chief
S. Jay Govindan, Assistant Chief
J. BRETT GROSKO, Trial Attorney
United States Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendants

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It is so ordered this ____ day of March, 2015.

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_____________________________________
The Honorable John A. Mendez
United States District Court Judge

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