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.
24
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.”
2
(Def. MTS 3:9-14.) Defendant argues paragraph 10 of the Boggs
3
declaration includes “an impermissible attempt to proffer expert
4
testimony
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[underlying]
6
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
19
“A plaintiff seeking a [stay pending appeal] must
20
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]
24
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
27
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
3
injunction
is
in
the
public
1
2009)
2
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
5
by Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)
6
(same).
7
supplement
8
likelihood of the success on the merits in four circumstances:
(relying
on
However,
9
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
19
1432,
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district
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movant “makes no showing that the district court needed to go
22
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
2
succeed
3
content challenges Defendant’s decision to approve the Project,
4
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
6
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
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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
26
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,
5
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
6
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).
26
27
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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
2
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
5
Defendant
with
applicable
responds
that
law”
and
“Plaintiff
“[t]he
has
public’s
not
met
its
6
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
9
health. (Def. Opp’n 12:11-18, ECF No. 53.) Defendant supports its
10
position citing to the Project Administrative Record (“PAR”),
11
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
16
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
20
weather
21
Supervisor Myers’ Declaration where he declares that the Project
22
area
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“[e]xtreme drought is expected to have several consequences with
24
respect to . . . the Project” since the area “typically receives
25
relatively intense lightning activity . . . and ranks high in
26
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.]
7
(Myers Decl. ¶ 11.) Myers also declares that lightning strikes
8
caused several fires in the forest on April 21.
9
declares:
2
3
4
5
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.)
16
Plaintiff replies that Defendant’s evidence does not
17
show that staying the Project “will result in imminent harm from
18
. . . wildfire.” (Pl. Reply 5:19-21, ECF No. 58.)
19
The evidence evinces that a stay poses the risk of
20
uncharacteristically severe wildfires in the Forest, that the
21
Project
22
implementing
23
interest in preventing wildfire. Plaintiff has not countered this
24
evidence.
25
Wildwest
26
possibility of a severe wildfire in the area” when assessing the
27
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
2
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
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