Native Songbird Care and Conservation et al v. LaHood et al

Filing 93

ORDER DENYING MOTION FOR LEAVE TO FILE A SUMMARY JUDGMENT MOTION by Judge Jon S. Tigar, denying 83 Motion for Leave to File. (wsn, COURT STAFF) (Filed on 11/7/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NATIVE SONGBIRD CARE AND
CONSERVATION, et al.,
Plaintiffs,

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ORDER DENYING MOTION FOR
LEAVE TO FILE A SUMMARY
JUDGMENT MOTION

v.

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VICTOR MENDEZ, et al.,

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United States District Court
Northern District of California

Case No. 13-cv-02265-JST

Defendants.

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Re: ECF No. 83

Plaintiffs seek to file a motion this month seeking summary judgment that, inter alia, the

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Federal Defendants should be compelled, pursuant to 5 U.S.C. § 706(1), to prepare a

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Supplemental Environmental Impact Statement (“SEIS”). Motion for Leave to File Summary

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Judgment Motion, ECF No. 83. Federal Defendants have now represented to this Court that, by

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the first week of December, they will have completed a reevaluation, pursuant to 23 C.F.R. §

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771.130, determining whether or not a SEIS is necessary. Declaration of Lanh T. Phan ¶ 8, ECF

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No. 91-1.

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Obviously, it will moot the relief Plaintiffs seek in their proposed summary judgment

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motion if the agencies determine that a SEIS is necessary. But even in the event that the agencies

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determine no SEIS is required, Defendants are likely to make strong arguments that the issuance

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of the reevaluation will significantly change the review the Court is called upon to undertake. In
Plaintiffs’ cited authority, NEPA’s reevaluation mandate “require[s] an agency to take a ‘hard
look’ at the new information to assess whether supplementation might be necessary.” Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 73 (2004) (citing Marsh v. Or. Nat. Resources Council,
490 U.S. 360, 385 (1985)); see also N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545
F.3d 1147, 1155 (9th Cir. 2008) (quoting Friends of the Clearwater v. Dombeck, 222 F.3d 552,
558 (9th Cir.2000) (“When new information comes to light the agency must consider it, evaluate

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it, and make a reasoned determination whether it is of such significance as to require [a

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supplemental EIS].”)

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Issuance of the reevaluation has the potential to have a sufficiently significant impact on

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the issues the Court is called upon to address that it will be a poor use of judicial resources, and

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potentially prejudicial to Defendants, to begin briefing the issue now. Plaintiffs cite no case in

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which a court compelled preparation of a SEIS while an agency was still in the process of

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conducting a regulatory review of whether one was necessary. (There might well be cases in

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which unreasonable delay calls for such action, but Plaintiffs have clarified that they do not argue

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pursuant to Section 706(1) that the reevaluation itself should be compelled as unreasonably

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United States District Court
Northern District of California

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withheld.)
Plaintiffs are free to argue that a SEIS is compelled regardless of the contents of the
reevaluation, but they will not be prejudiced by doing so after the reevaluation issues. The same is
true of the claims Plaintiffs bring under their first and third theories. See Order at ECF No. 82, at
3:28-4:11. Therefore, the Court hereby DENIES the currently pending request to file the summary
judgment motion. Plaintiffs may file for summary judgment after December 6.
The Court notes that it does not agree with the Federal Defendants that the Court must
build time into the schedule to permit the amendment of the complaint and the filing of responsive
pleadings. It appears to the Court that paragraph 125 of the first amended complaint would

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encompass a challenge to any final determination not to prepare a SEIS. Moreover, at least on
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some authority, see Dombeck, 222 F.3d at 560, a challenge to a reevaluation is cognizable under
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5 U.S.C. § 706(1), and in any case it appears that the Plaintiffs’ § 706(1) challenge is substantively
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similar to the one under § 706(2). Defendants may file any responsive pleading concurrently with
their response to Plaintiffs’ motion for summary judgment, and will presumably make the same
arguments in opposition that they would otherwise have made in a motion to dismiss.
The Court will adopt a schedule at the November 13 Case Management Conference that
will permit the Court to adjudicate this dispute, and determine the appropriate remedy for any
violation, by the end of February. The parties shall come to the conference prepared with
scheduling proposals that accomplish this goal. In their proposal(s), the parties may propose the

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modest shortening of the time periods required in the Federal and Local Rules, and may also

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propose a hearing date and time that does not fall on the Court’s normal hearing day, if the date is

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available on the Court’s schedule. If the parties cannot agree on a joint proposal, the parties can

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submit competing proposals and the Court will choose the one proposal that appears most

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reasonable. As always, any proposal made to the Court must be the subject of serious meet and

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confer efforts.

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The Court also expects the parties to come to the conference prepared to discuss proposals

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for alternative dispute resolution, and will consider ordering the parties to conduct mediation or

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other ADR of this dispute in the near future.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: November 7, 2013
______________________________________
JON S. TIGAR
United States District Judge

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