Center For Biological Diversity et al v. Bureau of Land Management et al

Filing 214

ORDER GRATING: 213 STIPULATION WITH PROPOSED ORDER REGARDING FURTHER PROCEEDINGS filed by American Sand Association, Bureau of Land Management, United States Fish & Wildlife Service, California Association of 4 Wheel Drive Cl ubs, Desert Vipers Motorcycle Club, California Off-Road Vehicle Association, Desert Survivors, Sierra Club, Center For Biological Diversity, American Motorcycle Association District 37, San Diego Off Road Coalition, Public Employees f or Environmental Responsibility, Off-Road Business Association, BlueRibbon Coalition, High Desert Multiple Use Coalition. Motion Hearing set for 1/31/2014 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston.. Signed by Judge Susan Illston on 8/5/13. (tfS, COURT STAFF) (Filed on 8/6/2013)

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ROBERT G. DREHER
Acting Assistant Attorney General
KEVIN W. McARDLE, Senior Attorney (D.C. Bar No. 454569)
United States Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Benjamin Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tele: [phone]/Fax: [phone]
[e-mail]
AYAKO SATO, Trial Attorney
United States Department of Justice
Environment & Natural Resources Division
Natural Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tele: [phone]/Fax: [phone]
[e-mail]

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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CENTER FOR BIOLOGICAL DIVERSITY, et al.,

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Plaintiffs,

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Case No. 3:03-cv-02509-SI
STIPULATION AND PROPOSED
ORDER REGARDING
FURTHER PROCEEEDINGS

v.
BUREAU OF LAND MANAGEMENT, et al.,

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Federal Defendants,
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and
AMERICAN SAND ASSOCIATION, et al.,
Defendant-Intervenors.

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STIPULATION RE FURTHER PROCEEDINGS

U.S. Department of Justice
Environment & Natural Resources Division

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Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI

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To establish an orderly schedule for accelerated further proceedings in this matter, and to

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avoid a dispute over preliminary injunctive relief, the parties, through undersigned counsel, and

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subject to the Court’s approval, hereby state as follows pursuant to Civil L.R. 7-12:

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WHEREAS, claims four through eight of Plaintiffs’ Second Amended Complaint (ECF

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No. 147) challenged: (1) the U.S. Fish and Wildlife Service’s (“Service”) January 25, 2005

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Biological Opinion (“2005 BiOp”) regarding the U.S. Bureau of Land Management’s (“BLM”)

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management of the Imperial Sand Dunes Recreation Area under the 2003 Recreation Area

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Management Plan (“RAMP”); (2) BLM’s Environmental Impact Statement (“EIS”) for the

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RAMP; (3) BLM’s March 24, 2005 Record of Decision (“2005 ROD”) approving the RAMP;

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and (4) the Service’s August 4, 2004 final rule designating critical habitat for the Peirson’s milk-

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vetch (“Critical Habitat Rule”);

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WHEREAS, the parties filed cross-motions for summary judgment on claims four
through eight in Plaintiffs’ Second Amended Complaint;
WHEREAS, on March 14, 2006, the Court issued an opinion and order granting in part

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and denying in part each party’s motion for summary judgment (ECF No. 174), and finding that

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Federal Defendants “have failed to comply with federal environmental statutes in a number of

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important respects,” ECF No. 174 at 3;

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WHEREAS, the Court held that the Service’s 2005 BiOp violated the Endangered

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Species Act by: “permit[ting] significant declines in the population of the already-threatened

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Peirson’s milk-vetch before instituting any mitigating measures”; “fail[ing] to explain how

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continued and expanded habitat degradation of almost half of the designated critical habitat for

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the Peirson’s milk-vetch does not result in ‘adverse modification’”; and including an incidental

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take statement for the desert tortoise that “does not contain a meaningful standard by which

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incidental take can be measured” and “fail[ing] to include required ‘terms and conditions’

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regarding how to minimize the potential for incidental take,” ECF No. 174 at 3;

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WHEREAS, the Court further held that the Service’s decision to exclude certain areas

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from the Critical Habitat Rule was inadequately supported and contrary to the ESA, ECF No.

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174 at 3;
STIPULATION RE FURTHER PROCEEDINGS

U.S. Department of Justice
Environment & Natural Resources Division

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Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI

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WHEREAS, the Court also held that the EIS for the 2003 RAMP violated the National

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Environmental Policy Act by eliminating the interim closures that have been in place since

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November 2000 from the range of alternatives evaluated and by failing to take a hard look at the

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impact of the RAMP on endemic invertebrates, ECF No. 174 at 3-4;

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WHEREAS, on September 26, 2006, the Court issued its Order and Injunction Regarding
Final Relief (ECF No. 192) (“Remedy Order”);
WHEREAS, in relevant part, the Remedy Order: vacated and remanded the 2005 ROD

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and EIS; vacated and remanded portions of the 2005 BiOp and incidental take statement (with

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conditions); remanded the 2003 RAMP; remanded the Service’s exclusions from the Critical

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Habitat Rule (with conditions); and directed the Service to submit a new final critical habitat rule

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to the Federal Register for publication no later than February 1, 2008;

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WHEREAS, paragraphs 5-7 of the Remedy Order provide, in relevant part, as follows:
5.
Notwithstanding any contrary provision of the 2005 ROD, 2003 RAMP, or
the FEIS, BLM shall maintain the vehicle closures as identified in the “Temporary
Closure of Approximately 49,300[] Acres to Motorized Vehicle Use of Five Selected
Areas in the ISDRA,” 66 Fed. Reg. 53,431-02 (Oct. 22, 2001) (“Temporary
Closure”)…

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6.
All injunctive relief shall expire 90 days after [BLM]’s issuance of a new
ROD approved after the completion of appropriate levels of land-use planning,
environmental analysis, and consultation pursuant to NEPA, [the Federal Land Policy
and Management Act], and the ESA…

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7.
BLM and [the Service] shall provide plaintiffs and defendant-intervenors
with copies of relevant final documents and file a Notice with this Court indicating that
the documents have been issued. Within 90 days of the filing of the Notice, plaintiffs
and defendant-intervenors may file a response, if any, to the Notice explaining why the
terms of this Order should continue…

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WHEREAS, on February 14, 2008, the Service’s new critical habitat designation for the

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Peirson’s milk-vetch was published in the Federal Register, 73 Fed. Reg. 8748 (Feb. 14, 2008);

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WHEREAS, the 2008 critical habitat designation was upheld in response to legal

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challenges brought by the Plaintiffs in this case and others, see Maddalena v. U.S. Fish &

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Wildlife Serv., No. 3:08-cv-02292-H-AJB (S.D. Cal. Aug. 5, 2010);

STIPULATION RE FURTHER PROCEEDINGS

U.S. Department of Justice
Environment & Natural Resources Division

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Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI

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WHEREAS, in June 2013, BLM issued a new ROD and RAMP for the ISDRA (“2013

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ROD”), which was preceded by BLM’s preparation of a new EIS pursuant to NEPA and the

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completion of consultation with the Service pursuant to ESA Section 7(a)(2), which resulted in

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the Service’s issuance of a new Biological Opinion on November 2, 2012 (“2012 BiOp”);

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WHEREAS, on June 17, 2013, Federal Defendants filed a Notice of the issuance of the

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ROD and supporting documents, including the new EIS and 2012 BiOp, and provided copies of

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the documents to the Plaintiffs and Defendant-Intervenors pursuant to paragraph 7 of the

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Remedy Order;

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WHEREAS, Plaintiffs have indicated that they intend to file a new pleading challenging
the new ROD and supporting documents;
WHEREAS, Plaintiffs have also indicated that they intend to file a response to the Notice

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explaining why the terms of the Remedy Order should continue and, in addition or in the

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alternative, seek preliminary injunctive relief pending a ruling on the merits of their challenge to

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the June 2013 ROD and supporting documents;

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WHEREAS, the parties subsequently entered into negotiations for a procedure whereby

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paragraph 5 of the Remedy Order would remain in effect while Plaintiffs’ challenge to the June

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2013 ROD and supporting documents is resolved on an expeditious basis, thereby avoiding the

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need for emergency proceedings and conserving the resources of the parties and the Court;

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WHEREAS, BLM desires to obtain a resolution of Plaintiffs’ challenge to the June 2013

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ROD and supporting documents as soon as possible, and in advance of April 15, 2014, to allow

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sufficient time for implementation of the ROD and public education prior to the periods of high

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use of the ISDRA commencing in the fall of 2014;

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NOW, THEREFORE, the parties hereby stipulate and agree as follows:

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1.

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Plaintiffs shall file a new pleading challenging the June 2013 ROD and supporting

documents on or before September 16, 2013.
2.

Federal Defendants shall file the administrative records for the June 2013 ROD

and the 2012 BiOp on or before September 20, 2013

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STIPULATION RE FURTHER PROCEEDINGS

U.S. Department of Justice
Environment & Natural Resources Division

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Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI

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3.

Federal Defendants and Defendant-Intervenors shall file their answers or other

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responses to Plaintiffs’ new pleading, if required under the Federal Rules of Civil Procedure, on

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or before October 15, 2013.

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4.

Plaintiffs shall file their motion for summary judgment on or before October 18,

2013. Plaintiffs’ supporting memorandum of points and authorities shall not exceed 25 pages.
5.

Federal Defendants shall file a combined cross-motion for summary judgment and

opposition to Plaintiffs’ motion, not to exceed 25 pages, on or before November 15, 2013.
6.

Intervenor-Defendants shall file a combined cross-motion for summary judgment

and opposition to Plaintiffs’ motion, not to exceed 25 pages, on or before November 15, 2013.
7.

Plaintiffs shall file a single combined opposition and reply to the summary

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judgment briefs described in paragraphs 5 and 6, not to exceed 20 pages, on or before December

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6, 2013.

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8.

Federal Defendants shall file a reply brief, not to exceed 15 pages, on or before

December 20, 2013.
9.

Intervenor-Defendants shall file a reply brief, not to exceed 15 pages, on or before

December 20, 2013.
10.

Notwithstanding any contrary provision of the June 2013 ROD or supporting

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documents, paragraph 5 of the Remedy Order shall remain in effect until the Court issues a

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ruling on the parties’ cross-motions for summary judgment or April 15, 2014, whichever occurs

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first. While Paragraph 5 of the Remedy Order remains in effect, BLM shall not be required to

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implement any provision of the June 2013 ROD or supporting documents. However, nothing in

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this Stipulation precludes BLM, in its sole discretion, from implementing any provision of the

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ROD or supporting documents that is not inconsistent with paragraph 5 of the Remedy Order.

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11.

Plaintiffs shall not pursue any preliminary or provisional injunctive relief

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involving the ISDRA or the claims contained in the new pleading prior to the Court’s ruling on

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cross-motions for summary judgment or April 15, 2014, whichever occurs first.

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STIPULATION RE FURTHER PROCEEDINGS

U.S. Department of Justice
Environment & Natural Resources Division

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Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI

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12.

The parties respectfully request that the Court issue a ruling on the parties’ cross-

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motions for summary judgment as soon as possible after briefing is complete and in advance of

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April 15, 2014, if possible.

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DATED:

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/s/ Brendan R. Cummings
(with permission by Kevin W. McArdle)
Brendan R. Cummings
Center for Biological Diversity
P.O. Box 549
Joshua Tree, CA 92252
760-366-2232
Fax: [phone]
[e-mail]

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August 2, 2013

Respectfully submitted,
ROBERT G. DREHER
Acting Assistant Attorney General
/s/ Kevin W. McArdle
KEVIN W. McARDLE, Trial Attorney
United States Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Benjamin Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tele: [phone]/Fax: [phone]
[e-mail]
[e-mail]

/s/ Lisa T. Belenky
(with permission by Kevin W. McArdle)
Lisa T. Belenky
Center for Biological Diversity
351 California Street , Suite 600
San Francisco, CA 94104
415-436-9682 ext. 307
Fax: [phone]
[e-mail]

/s/ Ayako Sato
AYAKO SATO, Trial Attorney
United States Department of Justice
Environment & Natural Resources Division
Natural Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tele: [phone]/Fax: [phone]
[e-mail]

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Attorneys for Defendants

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/s/ Paul A. Turcke
(with permission by Kevin W. McArdle)
Paul A. Turcke
Moore Smith Buxton & Turcke
950 West Bannock Street, Suite 520
Boise, ID 83702
208/331-1807
[e-mail]

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Attorney for Defendant-Intervenors Blue
Ribbon Coalition, California Association of 4
Wheel Drive Clubs, San Diego Off Road
Coalition, Desert Vipers Motorcycle Club, and

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STIPULATION RE FURTHER PROCEEDINGS

U.S. Department of Justice
Environment & Natural Resources Division

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Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI

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High Desert Multiple Use Coalition

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/s/ David P. Hubbard
(with permission by Kevin W. McArdle)
David P. Hubbard , Esq.
Gatzke Dillon & Ballance LLP
1525 Faraday Avenue, Suite 150
Carlsbad, CA 92008
[phone]
[e-mail]

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Attorney for Defendant-Intervenors Off-Road
Business Association, California Off-Road
Vehicle Association, and American Sand
Association

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5th
August
Pursuant to Stipulation, IT IS SO ORDERED this ___ day of __________________, 2013

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_________________________________
HON. SUSAN ILLSON
UNITED STATES DISTRICT JUDG

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This matter has been scheduled for argument on Friday,
January 31, 2014, at 9:00 a.m.

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STIPULATION RE FURTHER PROCEEDINGS

U.S. Department of Justice
Environment & Natural Resources Division

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Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI

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