Murphy v. United States Forest Service, et al.

Filing 33

STIPULATION and ORDER signed by Judge Garland E. Burrell, Jr on 7/21/14 ORDERING parties hereby stipulate to modify the briefing schedule as follows: Defendants' responsive pleading August 11, 2014; Plaintiff's motion for preliminary inju nction: August 11, 2014; The parties' respective oppositions: August 27, 2014; The parties' respective replies: September 9, 2014; Hearing on both motions: September 22, 2014; In addition, the Forest Service will make every effort to provide the complete Administrative Record to Plaintiff by August 8, 2014. (Becknal, R)

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BENJAMIN B. WAGNER
United States Attorney
GREGORY T. BRODERICK
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendants
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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS D. MURPHY
Plaintiff,
v.
UNITED STATES FOREST SERVICE;
TOM TIDWELL, in his official capacity as
Chief of the United States Forest Service;
and NANCY J. GIBSON, in her official
capacity as Forest Supervisor of the United
States Forest Service,
Defendants

CASE NO. 13-cv-02315-GEB-AC
STIPULATION AND [PROPOSED]
ORDER FOR EXTENSION OF TIME TO
RESPOND TO COMPLAINT and TO
ALTER BRIEFING SCHEDULE.

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The parties seek an order from this Court further extending the time for the United States to

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respond to Plaintiff’s First Amended Complaint, and to amend the briefing schedule previously entered

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by the Court so that the parties may continue to narrow, or possibly resolve, this dispute.

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Plaintiff served its Complaint in this matter on November 13, 2013. Pursuant to Federal Rule of

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Civil Procedure 4(i), Defendants’ responsive pleading was due on January 13, 2014. The parties

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stipulated to an extension of 15 days, up to and including January 28, 2014, for Defendants to respond.

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In submitting the Joint Status Report, Plaintiff indicated that he would amend their Complaint to add

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claims, and filed a Second Amended Complaint with additional claims alleging violations of the

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Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) on February 6, 2014.

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(Dkt. No. 13) After filing of the Joint Status Report, the parties engaged in settlement talks and

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exchanged drafts of a written term sheet. This Court then granted a further extension up to and

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including April 8, 2014. (See Dkt. No. 21.) On that date, the parties sought, and the Court later

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STIPULATION AND PROPOSED ORDER TO EXTEND TIME AND ALTER BRIEFING SCHEDULE

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approved, a further extension to April 25, 2014. (See Dkt. Nos. 22-23.) The Court later approved a

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further extension to May 12, 2014, and then to May 28, 2014. (Dkt. Nos. 25 & 27).

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During this time, Plaintiff sent a second ESA “60-day notice letter” to Defendants. Among

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other things, Plaintiff’s notice letter complains that the United States Forest Service did not consult

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with the United States Fish and Wildlife Service regarding the alleged effects of the project on the

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Sierra Nevada Yellow-Legged Frog when the species was listed as endangered. Settlement efforts

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were ultimately unsuccessful, and the parties entered a stipulation regarding a briefing schedule for

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Defendants’ motion to dismiss and for Plaintiff’s preliminary injunction motion, which this Court

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approved on May 28, 2014. (Dkt. No. 28). The current schedule is as follows:

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•Defendants’ responsive pleading

July 21, 2014

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•Plaintiff’s motion for preliminary injunction:

July 21, 2014

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•The parties’ respective oppositions:

August 8, 2014

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•The parties’ respective replies:

August 18, 2014

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•Hearing on both motions:

August 25, 2014

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On July 8, 2014, Plaintiff filed a Second Amended Complaint, asserting new claims, including

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claims based on its second ESA 60-day notice letter.

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The Forest Service is in the process of making a decision whether to consult with the Fish

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and Wildlife Service regarding the effects of the project on the frog. The Forest Service expects to

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complete this decision-making process by August 1, 2014, and may take a variety of actions

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depending on the decision made. This could include continuing the project as-is, altering the project,

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further study, or other options. Such actions could render unnecessary any preliminary injunction

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motion, lead to complete resolution of the case, or have no effect on the litigation. But, under the

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present schedule, this will not be known until the middle of the briefing schedule.

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The parties do not believe that it would be wise to use their resources and the Court’s limited

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resources on a motion to dismiss and a preliminary injunction motion when circumstances are likely

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to change mid-briefing and in light of the fact that the Forest Service has agreed not to take further

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on-the-ground action on the project through at least October 15, 2014. As a consequence, the parties

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STIPULATION AND PROPOSED ORDER TO EXTEND TIME AND ALTER BRIEFING SCHEDULE

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agree that it would be judicious to amend the briefing schedule as set forth below. Therefore, the

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parties hereby stipulate to modify the briefing schedule as follows:

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•Defendants’ responsive pleading

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•Plaintiff’s motion for preliminary injunction: August 11, 2014

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•The parties’ respective oppositions:

August 27, 2014

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•The parties’ respective replies:

September 9, 2014

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•Hearing on both motions:

September 22, 2014

August 11, 2014

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In addition, the Forest Service will make every effort to provide the complete Administrative Record

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to Plaintiff by August 8, 2014.

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This schedule will permit the Forest Service time to complete its decision-making process

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and to initiate consultation with the Fish and Wildlife Service, if it decides to do so. Alternatively, if

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no such consultation is initiated, this schedule will permit the parties and the Court to brief the

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motion to dismiss and the preliminary injunction on a reasonable time frame, and to permit time for

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the matter to be decided before operations re-commence no sooner than October 15, 2014.

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Respectfully submitted,

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DATED: July 21, 2014

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By

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BENJAMIN B. WAGNER
United States Attorney

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/s/ Paul S. Weiland
Attorney for Plaintiff

By:

/s/ Gregory T. Broderick
GREGORY T. BRODERICK
Assistant United States Attorney

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STIPULATION AND PROPOSED ORDER TO EXTEND TIME AND ALTER BRIEFING SCHEDULE

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IT IS SO ORDERED.

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Dated: July 21, 2014

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STIPULATION AND PROPOSED ORDER TO EXTEND TIME AND ALTER BRIEFING SCHEDULE

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