Conservation Congress v. United States Forest Service

Filing 61

ORDER denying 41 Motion to Stay and granting 52 Motion to Strike signed by Judge Garland E. Burrell, Jr on 5/29/15. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS, a nonprofit organization,
Plaintiff,

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ORDER DENYING PLAINTIFF’S MOTION
FOR A STAY PENDING APPEAL AND
GRANTING DEFENDANT’S MOTION TO
STRIKE

v.

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No. 2:14-CV-02228-GEB-AC

UNITED STATES FOREST SERVICE,
Defendant.

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Plaintiff seeks to stay implementation of the Porcupine

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Vegetation and Road Management Project (“the Project”) in the

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Shasta-Trinity

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outcome of its appeal of an order granting Defendant’s motion for

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summary

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strike

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motion.

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I.

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National

judgment.
evidence

Forest

Defendant
Plaintiff

(“the

opposes
submitted

Forest”),

pending

the

motion

and

in

support

of

the

moves
its

to

stay

MOTION TO STRIKE EVIDENCE SUBMITTED IN SUPPORT OF
PLAINTIFF’S STAY MOTION

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Defendant moves to strike “(1) paragraphs 7-9 of the

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Boggs Declaration, (2) the impermissible lay opinion regarding

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landscape fragmentation and impacts to owl habitat from paragraph

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10 of the Boggs Declaration; (3) both exhibits to the Boggs
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1

Declaration;

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entirety.” (Def. MTS Reply 1:26-28, ECF No. 60.) Defendant argues

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the evidence should be stricken since “Plaintiff [impermissibly]

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seeks, under the guise of ‘harm declarations,’ to attack the

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merits of the . . . Project decision, . . . to offer untimely

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expert critiques of the merits of the . . . Project decision, and

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to submit inadmissible post-decision documents.” (Def. MTS 1:19-

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25, ECF No. 52.)

and

9

(4)

the

Plaintiff

Declaration

responds

of

that

Tonja

it

Chi

in

“submitted

its

both

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declarations and accompanying exhibits to demonstrate [that it is

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likely

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injunction,]” and “only cited to these declarations in portions

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of [its motion] that addressed irreparable harm,” and therefore,

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“the declarations are properly before the Court.” (Pl. Opp’n MTS

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1:5-10, ECF No. 57.)

to

suffer

irreparable

harm

in

the

absence

of

an

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Defendant replies that it “does not dispute that

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extra-record declaration testimony may be used to demonstrate

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[the] irreparable harm needed to justify injunctive relief,” but

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“[t]he defect in the declarations submitted by Plaintiff . . . is

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that[,]

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briefing[,] . . . [they] plainly attempt a new attack on the

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merits of the [Project] decision.” (Def. MTS Reply 1:11-16, ECF

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No. 60.) Specifically, Defendant argues paragraphs 7-9 of the

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Boggs declaration contain Boggs’ opinion that Defendant “failed

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to appropriately consider the threats posed by the barred owl and

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failed to comply with the U.S. Fish and Wildfire Service’s 2011

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Revised Recovery Plan for the northern spotted owl,” which is

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“not

regardless

directed

of

toward

where

they

establishing
2

are

harms,

cited

but

in

Plaintiff’s

instead

[is]

an

1

attempt to impute ‘the correctness of the agency’s decision.”

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(Def. MTS 3:9-14.) Defendant argues paragraph 10 of the Boggs

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declaration includes “an impermissible attempt to proffer expert

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testimony

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[underlying]

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Project

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connectivity,’” and that the two exhibits attached to the Boggs

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declaration, a google earth image of the Forest (Ex. A), and

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Defendant’s March 31, 2014 Annual Progress Report (Ex. B), are

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offered to attack the merits of Defendant’s decision to approve

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the Project. (Def. MTS 5:6-8; 5:9-11; 4:11-13.) Defendant also

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argues that through the Chi declaration, Plaintiff “asks this

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Court

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[Defendant] with regard to the impacts of the Project on the

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northern spotted owl,” since Chi “devotes the majority of her

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declaration to developing an argument that [Defendant] failed to

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take adequate account of the competitive pressures the barred owl

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places on the spotted owl.” (Def. Mot. 5:25-26; 6:1-4.)

to

and

new

evidence

claim,

area

alleging

is

revisit

in

the

support

[that]

‘highly

of

the

Plaintiff’s
owl

fragmented’

merits

of

the

habitat
and

conclusions

.
in

.

.

the

‘impair[s]

reached

by

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“A plaintiff seeking a [stay pending appeal] must

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establish that [1] [it] is likely to succeed on the merits, [2]

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that [it] is likely to suffer irreparable harm in the absence of

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preliminary relief, [3] that the balance of equities tips in

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[its]

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interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20

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(2008)) The Ninth Circuit has repeatedly considered declarations

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in its analysis of whether the plaintiff has demonstrated the

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likelihood that it will suffer irreparable harm without a stay.

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See e.g. Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir.

favor,

and

[4]

that

an

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injunction

is

in

the

public

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2009)

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injunction analysis); City of Sausalito v. O’Neil, 386 F.3d 1186,

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1198 (9th Cir. 2004) (same); Idaho Watersheds Project v. Hahn,

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307 F.3d 815, 833-34 (9th Cir. 2002) abrogated on other grounds

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by Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)

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(same).

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supplement

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likelihood of the success on the merits in four circumstances:

(relying

on

However,

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the

declarations

to

declarations

show

may

administrative

harm

only

record

to

be
show

prong

of

the

considered
the

to

movant’s

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(1) if necessary to determine “whether the
agency has considered all relevant factors
and has explained its decision,” (2) “when
the agency has relied on documents not in the
record,’ [] (3) “when supplementing the
record is necessary to explain technical
terms of complex subject matter,” . . . .
[or] [4] “when plaintiffs make a showing of
agency bad faith.”

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S.W. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d

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1443, 1450 (9th Cir. 1996) (quoting Inland Empire Pub. Lands

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Council

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Regardless, it is the movant’s burden to show the declarations

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should be considered. Animal Def. Council v. Hodel, 840 F.2d

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1432,

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district

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movant “makes no showing that the district court needed to go

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outside the administrative record.”).

10
11
12

v.

Glickman,

1437

(9th

court

Cir.

should

88

F.3d

1988)
have

697,

703-04

(denying

gone

beyond

(9th

movants
the

Cir.

1996)).

argument

record

since

that
the

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Plaintiff does not argue that the relevant portions of

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the Boggs declaration and the Chi declaration are admissible to

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show its likelihood of success on the merits of its underlying

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claims and does not cite the declarations in the portion of its

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motion concerning likelihood of success on the merits. However,

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the

contents

of

the

declarations
4

evince

that

they

are

an

1

impermissible

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succeed

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content challenges Defendant’s decision to approve the Project,

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which

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claims.

on

is

attempt

the

to

merits

the

demonstrate

of

argument

its

Plaintiff

underlying

Plaintiff

advances

is

claims

in

likely
since

its

to

their

underlying

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Paragraphs 7-9 of the Boggs declaration offer opinions

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criticizing Defendant’s approval of the Project for “fail[ing] to

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utilize diameter limits,” “claim[ing] there have not been barred

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owls

identified

in

Project

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Declaration, Defendant’s March 31, 2014 Annual Progress Report,

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cited in paragraph 8, is offered to support this impermissible

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argument.

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Defendant’s

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declaration and Exhibit B attached to the declaration is granted.

Exhibit

Decl.

¶¶

to

strike

motion

Defendant

has

7-9,

B

best

attached

ECF

No.

paragraphs

not

the

outdated

scientific

(Boggs

utilize

on

11

protocol;”

to

“rely[ing]

methodology,”

survey

“refus[ing]

area,”

10

17

and

the

identified

available

to

the

43.)

7-9

Therefore,

of

which

Boggs

the

Boggs

portion

of

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paragraph 10 of the Boggs Declaration it seeks to strike beyond

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its reference to the phrases “highly fragmented,” and “impair[s]

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connectivity,” which appear in a sentence where Boggs declares,

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“This portion of designated critical habitat in the sale is the

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only

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surrounded

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fragmented landscape impairing connectivity, as is evidenced in a

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google earth image.” (Def. MTS 5:8; Boggs Decl.

¶ 10.) This

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sentence,

attached

27

Exhibit

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impermissible attempt to use extrinsic evidence to attack the

remaining

A

by

and
to

good

habitat

logging

google
the

units

earth

Boggs

in

the

that

image

have

it

declaration,

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area

as

it

resulted

references,
are

part

of

is
in

entirely
a

highly

as

Plaintiff’s

1

merits

2

Therefore,

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paragraph 10 of the Boggs declaration on page 4 lines 1-4 as well

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as Exhibit A attached to the Boggs declaration are stricken.

of

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the

Defendant’s

Defendant’s

decision

motion

is

to

approve

granted

and

the

the

Project.

portion

of

Chi declares in her declaration that the “Project will

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result

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challenges Defendant’s decision to approve the Project, stating

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“[i]n my professional opinion, the emphasis on potential threats

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to the [northern spotted owl] within the 2011 Revised Recovery

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Plan understates the true magnitude of threat by the barred owl

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on

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wildfire to [northern spotted owl].” (Chi Declaration ¶¶ 10, 19,

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ECF No. 44.) Therefore, Defendant’s motion to strike the Chi

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declaration is granted.

the

in

harm

to

[northern

15

the

[northern

spotted

II.

owl]

spotted

and

owl]”

overstates

and

the

directly

threat

by

MOTION FOR STAY PEDING APPEAL

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A motion to stay pending appeal is reviewed under the

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same standard as a preliminary injunction. Human Soc. of U.S. v.

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Gutierrez, 558 F.3d 896, 897 (9th Cir. 2009) (citing Winter, 555

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U.S. at 20). A plaintiff seeking a [stay pending appeal] must

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establish,

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interest.” Winter, 555 U.S. at 20 (emphasis added). A court “must

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consider only the portion of the harm that would occur while the

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[stay]

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Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 765

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(9th Cir. 2014).

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A.

is

inter

in

alia,

place.”

“that

an

League

injunction

of

is

Wilderness

in

the

public

Defenders/Blue

Public Interest
Plaintiff argues a stay “would . . .

protect the

public’s interest in preventing federal agencies from acting in a
6

1

manner

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interest in ensuring that federal agencies manage public lands in

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compliance with environmental laws ‘invokes a public interest of

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the highest order.’” (Pl. Mot. 7:26-27; 8:3-5, ECF No. 42.)

inconsistent

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Defendant

with

applicable

responds

that

law”

and

“Plaintiff

“[t]he

has

public’s

not

met

its

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burden of showing that . . . the public interest favor[s] an

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injunction” since the Project will manage the risk of severe

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wildfire, which threatens human life, property, and the Forest’s

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health. (Def. Opp’n 12:11-18, ECF No. 53.) Defendant supports its

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position citing to the Project Administrative Record (“PAR”),

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where

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wildfires by thinning dead trees that would otherwise allow the

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Forest to burn with an uncharacteristic severity. See PAR 323

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(stating that the Project is designed to “reduce the risk of

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uncharacteristic

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Project does not proceed, “[f]orest stands would be left in an

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overly dense, stressed state leaving them less resilient to . . .

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wildfire”); PAR 126 (“The treatment areas are highly susceptible

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to high fire intensity torching . . . under 90th percentile

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weather

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Supervisor Myers’ Declaration where he declares that the Project

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area

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“[e]xtreme drought is expected to have several consequences with

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respect to . . . the Project” since the area “typically receives

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relatively intense lightning activity . . . and ranks high in

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terms of acres burned in historical fires.” (Myers Decl. ¶¶ 9,

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10, ECF No. 53-1.) Myers further declares:

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it

states

the

Project

fire

conditions.”).

“has

been

will

effects”);

Defendant

classified

as

in

reduce

PAR

12

also

the

risk

(stating

cites

‘extreme’

to

of

that

the

drought,”

extremely dry local conditions have already
7

severe

if

the

Forest

and

the

1

6

manifested
in
unusual
pre-fire
season
wildfires, [including] . . . . [t]he Stephens
fire[, that] burned 209 acres approximately
14 miles from the . . . [P]roject area in
late February . . . . The Stephens fire,
which occurred in an area typically under
several feet of snow in February, is unusual
and is an indicator of the high risk for
wildfire
severity
that
exists
and
is
worsening in the vicinity [of the Project
area.]

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(Myers Decl. ¶ 11.) Myers also declares that lightning strikes

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caused several fires in the forest on April 21.

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declares:

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3
4
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the high fire hazard conditions anticipated
this summer will likely require greater
constraints on operations [to implement the
Project], including restricting operations to
the cooler parts of the morning and evening
and even halting operations altogether if the
risk of a fire is too high. Consequently, it
is beneficial to have the operators complete
as much of the Project as soon as possible
while conditions are favorable.

10
11
12
13
14
15

(Id.) Myers

(Myers Decl. ¶ 15.)

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Plaintiff replies that Defendant’s evidence does not

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show that staying the Project “will result in imminent harm from

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. . . wildfire.” (Pl. Reply 5:19-21, ECF No. 58.)

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The evidence evinces that a stay poses the risk of

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uncharacteristically severe wildfires in the Forest, that the

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Project

22

implementing

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interest in preventing wildfire. Plaintiff has not countered this

24

evidence.

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Wildwest

26

possibility of a severe wildfire in the area” when assessing the

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public interest in an injunction).

28

///

reduces

this

the

Project

Therefore,
Inst.

risk,

v.

and

could

472

motion

F.3d

8

even

a

interfere

Plaintiff’s
Bull,

that

587,

short

with

is

the

denied.

592

delay

in

public’s

See

e.g.

(weighing

“the

1

III. CONCLUSION

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For the stated reasons, Defendant’s motion to strike is

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GRANTED

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DENIED.

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Dated:

and

Plaintiff’s

motion

May 29, 2015

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for

a

stay

pending

appeal

is