Murphy v. United States Forest Service, et al.

Filing 35

STIPULATION and ORDER REGARDING PRELIMINARY INJUNCTION BRIEFING SCHEDULE signed by Judge Garland E. Burrell, Jr., on 8/6/14. (Kastilahn, A)

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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 REGARDING PRELIMINARY
INJUNCTION BRIEFING SCHEDULE.

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The parties seek an order from this Court modifying the preliminary injunction briefing
schedule established by the Court’s July 21, 2014, briefing schedule.
This case involves allegations that the United States Forest Service violated the National

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Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”) in approving and

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implementing the Echo Lake Hazardous Fuel Reduction Project, which is intended to reduce fire risk

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on forest land near Echo Lake. The situation on-the-ground is fluid. In April 2013—after the

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project was approved but before it commenced—the U.S. Fish and Wildlife Service proposed listing

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of the Sierra Nevada Yellow-Legged Frog and proposed designation of critical habitat for the species

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to include the project area. (The species was previously identified as a candidate for listing in 2003.)

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In April 2014—after this project was approved and had actually commenced—the United States Fish

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and Wildlife Service listed the Sierra Nevada Yellow-Legged Frog as an endangered species, and

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Plaintiff amended his complaint to state new ESA claims. (Dkt. No. 30). In addition, the project is

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to be implemented in a manner that involves no cutting of trees before Labor Day each year, which

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STIPULATION AND PROPOSED ORDER TO ALTER P/I BRIEFING SCHEDULE

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effectively limits most project activities to the Fall of each year (because of weather). There have

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been no project activities in 2014. Given the dynamic nature of this project, inter alia, there have

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been two amended complaints as well as extensions and changes to the briefing schedule. (See, e.g.,

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Dkt. Nos. 12, 14, 21, 23, 25, 27, 31, and 33).
On July 21, 2014, this Court entered the current briefing schedule on stipulation of the

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parties. (Dkt. No. 33). The schedule required Plaintiff to file any preliminary injunction motion by

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August 11, with a hearing set for September 22, 2014, with the Forest Service agreeing not to take

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any further on-the-ground action on this project until at least October 15, 2014. (Dkt. No. 33 at

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2:24-27). The purpose behind this halt to project activities was to permit the Forest Service time to

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determine whether it would consult with the United States Fish and Wildlife Service regarding any

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potential effect the project may have on the newly-listed Sierra Nevada Yellow Legged Frog species.

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(See id.) The Forest Service has since determined that it will consult with the Fish and Wildlife

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Service regarding potential impacts to the frog, and has resolved to take no further on-the-ground

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activities on the project until consultation is complete and, in any event, no on-the-ground activities

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in 2014. In addition, the Forest Service is committed to taking no further activities without

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providing at least 35 days’ notice to Plaintiff. This commitment effectively eliminates the need for

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Plaintiff to seek a preliminary injunction at this time, though Plaintiff reserves the right to seek a

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preliminary injunction once further project activities are imminent.
The consultation process may result in changes to the project, eliminating or narrowing some

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of the claims and issues in this litigation. Therefore, the parties believe that altering the briefing

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schedule in this manner is likely to conserve their resources, as well as this Court’s resources. In

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addition, the prior scheduling order provided a due date of August 8, 2014, for Defendants to

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produce the administrative record. (Dkt. No. 33 at 3:8-9). The parties agree that such deadline shall

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be extended to October 15, 2014, in light of the change in schedule. Defendants’ motion to dismiss,

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however, can still be heard on the present briefing schedule and should continue to be briefed and

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heard on that schedule. (See Dkt. No. 33 at 3:3-7).

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STIPULATION AND PROPOSED ORDER TO ALTER P/I BRIEFING SCHEDULE

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Respectfully submitted,

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DATED: August 5, 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 ALTER P/I BRIEFING SCHEDULE

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IT IS SO ORDERED.

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Dated: August 6, 2014

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STIPULATION AND PROPOSED ORDER TO ALTER P/I BRIEFING SCHEDULE

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