CENTER FOR BIOLOGICAL DIVERSITY et al v. US FISH AND WILDLIFE SERVICE et al

Filing 12

ORDER granting 10 Motion to Consolidate Cases. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FRIENDS OF ANIMALS,

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Plaintiff,
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v.
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PAUL PHIFER, Assistant Regional
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Director of Ecological Services for the
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Northeast Regional Office of the United
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States Fish & Wildlife Service, et al.,
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Defendants.
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____________________________________)
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CENTER FOR BIOLOGICAL
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DIVERSITY, et al.,
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Plaintiffs,
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v.
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UNITED STATES FISH AND
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WILDLIFE SERVICE, et al.,
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Defendants.
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1:15-cv-00157-JAW

1:15-cv-00327-JAW

ORDER ON MOTIONS TO CONSOLIDATE CASES 1
In these actions, Plaintiffs challenge Defendants’ November 2014 decision to issue an
incidental take permit to the Maine Department of Inland Fisheries and Wildlife for Canada lynx.
The matter is before the Court on unopposed motions to consolidate the cases for purposes of
pretrial merits briefing and trial. (Case No. 1:15-157, ECF No. 63; Case No. 1:15-327, ECF No.
10.) The Court grants the motions.

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The Court referred the motions. Because the motions are not dispositive of any issue in the cases, the referred
motions are addressed by order, pursuant to Fed. R. Civ. P. 72 and 28 U.S.C. § 636(b)(1)(A).

Background
In November 2014, Defendant U.S. Fish and Wildlife Service granted an incidental take
permit to the Maine Department of Inland Fisheries and Wildlife, which permit authorizes the take
of Canada lynx. In Case No. 1:15-cv-00327, commenced on August 17, 2015, the Center for
Biological Diversity, the Wildlife Alliance of Maine, and the Animal Welfare Institute assert four
claims:
1.

That issuance of the permit violated the Endangered Species Act (ESA) and the

Administrative Procedures Act (APA) by, inter alia, failing to impose conditions that will
mitigate take to the maximum extent practicable.
2.

That issuance of the permit violated the ESA and the APA by, inter alia, failing to

minimize take to the maximum extent practicable.
3.

That issuance of the permit violated the ESA and the APA by, inter alia, failing to

ensure adequate funding for the mitigation and minimization plan.
4.

That issuance of the permit violated the National Environmental Policy Act because

Defendants failed to prepare an environmental impact statement for the permit.
(Center for Biological Diversity, et al., Complaint ¶¶ 68 – 76.)
In Case No. 1:15-cv-00157, commenced January 22, 2015, Friends of Animals similarly
asserts that issuance of the permit violated the ESA and the APA because the permit does not
ensure that the incidental take of Canada lynx would be minimized to the maximum extent
practicable. (Friends of Animals Complaint ¶¶ 6, 63 – 69.)
Discussion
Federal Rule of Civil Procedure 42, which governs the consolidation of actions, provides
in relevant part:

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If actions before the court involve a common question of law or fact, the court may:
(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.
Fed. R. Civ. P. 42(a). Consolidation is designed to avoid the burdens associated with overlapping
or sequential trials involving repetitive evidence, including the duplicative costs that one or more
of the parties might incur, and the unnecessary expenditure of limited court time in pretrial
management and trial of parallel cases or common issues. Arroyo v. Chardon, 90 F.R.D. 603, 605
(D.P.R. 1981); In re Viatron Computer Sys. Corp. Litig., 86 F.R.D. 431 (D. Mass. 1980); see also
Seguro de Servicio de Salud de Puerto Rico v. McAuto Sys. Grp., Inc., 878 F.2d 5, 8 (1st Cir. 1989)
(observing that the presence of common parties is an important factor for consolidation).
A review of the pleadings in the instant action reveals that consolidation is appropriate.
The Fish and Wildlife Service is a defendant in both cases; both cases present identical issues of
both law and fact; and the procedural posture of the cases is sufficiently similar. Judicial economy
and the interests of the parties (as evidenced by the lack of objection to the consolidation request),
therefore, would plainly be served through consolidation.
Conclusion
Based on the foregoing analysis, the Court grants the motions to consolidate. Currently, a
telephonic status conference is schedule in docket 1:15-cv-157 for November 6, 2015, at 11 a.m.
The Court will proceed with the conference with the participation of all of the parties in the
consolidated action.

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CERTIFICATE
Any objections to this report shall be filed in accordance with Fed.R.Civ.P. 72.

/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 23rd day of October, 2015.

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