Center for Biological Diversity et al v. Otter et al

Filing 116

MEMORANDUM DECISION AND ORDER. NOW THEREFORE IT IS HEREBY ORDERED, that the motion to reconsider 105 is DENIED without prejudice. IT IS FUTHER ORDERED, that the plaintiffs shall conduct the discovery of Bridget Fahey and the FWS within the next 60 days. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CENTER FOR BIOLOGICAL DIVERSITY,
WESTERN WATERSHEDS PROJECT,
FRIENDS OF THE CLEARWATER, and
WILDEARTH GUARDIANS,

Case No. 1:14-CV-258-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
C.L. “BUTCH” OTTER, Governor of Idaho, in
his official capacity; VIRGIL MOORE,
Director of the Idaho Department of Fish and
Game, in his official capacity; BRAD
CORKILL, FRED TREVEY, BOB
BAROWSKY, MARK DOERR, RANDY
BUDGE, KENNY ANDERSON, and WILL
NAILLON, members of the Idaho Fish and
Game Commission, in their official capacities,
Defendants.

INTRODUCTION
The Court has before it a motion to reconsider based on new evidence. The
motion is fully briefed and at issue. For the reasons expressed below, the Court will deny
the motion at this time to allow plaintiffs to conduct discovery concerning the new
evidence. The denial of the motion is without prejudice to the right of the State to refile
the motion after completion of the discovery.
ANALYSIS
The plaintiffs – four environmental groups – have sued officials of the State of
Idaho, alleging that the State’s trapping regulations fail to sufficiently protect
Memorandum Decision & Order – page 1

the Canada Lynx, a species that is listed as threatened under the Endangered Species Act
(ESA). Plaintiffs point out that trappers, licensed by the State, have captured four lynx in
traps meant for other species over the last three-and-a-half years. They urge the Court to
impose specific regulatory changes on trapping in lynx habitat that would reduce the
chance that lynx would be caught in traps intended to lure other species.
Each side filed a motion for summary judgment. Plaintiffs sought to impose
regulatory changes on trapping throughout the State, while the State argued that no
changes were required. To resolve these motions, the Court reviewed the status of the
lynx in each of the seven Regions defined by the Idaho Department of Fish and Game to
determine if it was likely that lynx would be inadvertently trapped in those Regions.
In five of those Regions, the Court concluded that it was not likely that lynx would
be inadvertently trapped in the future and denied plaintiffs’ request for injunctive and
declaratory relief. But in two of the Regions – the northern-most Regions – the Court did
find it likely that lynx would be inadvertently trapped and directed the parties to submit a
proposed remedy to address this conclusion.
The State responded by filing a motion to reconsider supported by a new
Declaration of a key witness, Bridget Fahey, the Division Chief for Conservation and
Classification for the Fish and Wildlife Service (FWS). Fahey had filed a Declaration in
the first round of summary judgment motions but it was not clear whether she was
speaking officially for the FWS. Thus, the Court did not accord to her the deference that
might otherwise be due to an agency official interpreting agency materials.

Memorandum Decision & Order – page 2

That ambiguity is clarified in Fahey’s new Declaration: She describes in detail the
official authorization she received from the FWS to testify in this case. See Fahey
Declaration (Dkt. No. 105-2). It is now clear that Fahey’s testimony is the official
position of the FWS.
Plaintiffs complain that they have not been able to take discovery regarding
Fahey’s opinions. Her original Declaration was filed only after the plaintiffs had filed
their motion for summary judgment. The State was not hiding the ball here – they had
provided in initial disclosures an opinion Fahey gave in another case that was somewhat
similar to that given here. See Declaration (Dkt. No. 113-3). The State was originally
going to call another FWS witness, but when he became unavailable, the State’s counsel
discussed this verbally with plaintiffs’ counsel and notified him that Fahey may be called
instead. But the State did not list Fahey on its witness list, which may have caused some
confusion, and the plaintiffs had no real opportunity to take any discovery concerning her
original Declaration, given the timing of its filing. Plaintiffs had little incentive to ask for
a delay to conduct discovery because Fahey’s Declaration did not clearly address her
authority to speak for the FWS, a ground for challenge that did not require discovery and
was adopted by the Court in its earlier decision.
This brief review shows that both parties were proceeding in good faith and with
due diligence. Nevertheless, the plaintiffs have not been able to depose Fahey and are
entitled to do so before the motion to reconsider is resolved. The Court will therefore
deny the motion to reconsider without prejudice to the right of the State to refile the

Memorandum Decision & Order – page 3

motion after plaintiffs have had an opportunity to depose Fahey and conduct any
necessary discovery with the FWS.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to reconsider
(docket no. 105) is DENIED without prejudice to the right of the State to refile the
motion after the plaintiffs have been able to take discovery of Bridget Fahey and the
FWS.
IT IS FUTHER ORDERED, that the plaintiffs shall conduct the discovery of
Bridget Fahey and the FWS within the next sixty (60) days.

DATED: September 24, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 4