Indigenous Environmental Network et al v. United States Department of State et al

Filing 113

ORDER: IT IS HEREBY ORDERED: 1) Federal Defendants' (84 in 4:17-cv-00031-BMM, 91 in 4:17-cv-00029-BMM) Motion to Limit Judicial Review is DENIED to the extent that Plaintiffs seek to introduce expert testimony. 2) Plaintiffs shall file with the Court their Expert Disclosures with Reports on or before December 29, 2017. 3) Federal Defendants and TransCanada shall file with the Court their Rebuttal Expert Disclosures with Reports on or before January 26, 2018. SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 12/12/2017. Associated Cases: 4:17-cv-00029-BMM, 4:17-cv-00031-BMM (SLR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

INDIGENOUS ENVIRONMENTAL
NETWORK and NORTH COAST
RIVER ALLIANCE,

CV-17-29-GF-BMM
CV-17-31-GF-BMM

and
NORTHERN PLAINS RESOURCE
COUNCIL, et al.,
ORDER

Plaintiffs,
vs.
UNITED STATES DEPARTMENT
OF STATE, et al.,
Defendants
and
TRANSCANADA KEYSTONE
PIPELINE and TRANSCANADA
CORPORATION,
Defendant-Intervenors.

Defendants United States Department of State, Thomas A. Shannon, Jr., in
his official capacity, United States Fish and Wildlife Service, James W. Kurth, in
his official capacity, and Ryan Keith Zinke, in his official capacity (collectively
“Federal Defendants”) filed a motion to limit judicial review of all claims to the
administrative record on November 8, 2017. (Doc. 91.) TransCanada Corporation
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filed a response adopting Federal Defendants’ arguments on November 16, 2017.
(Doc. 97.) Northern Plains Resource Council Plaintiffs and Indigenous
Environmental Network Plaintiffs (collectively “Plaintiffs”) oppose the motion.
(Doc. 100, 101.)
The Court determined at the Preliminary Pretrial Conference on October 11,
2017, that it would like to examine the expert statements and see what “those
statements contain and entail” before deciding if the expert statements will be
admissible. (Doc. 90 at 8.) Ninth Circuit precedent provides support for this
determination. Federal Defendants and TranCanada argue that Plaintiffs’
Endangered Species Act (“ESA”) citizen-suit claims are subject to the same
Administrative Procedure Act (“APA”) standard and scope of review as Plaintiffs’
other claims. (Doc. 92 at 17.) Federal Defendants and TransCanada request that the
Court limit judicial review of the ESA citizen-suit claim to the administrative
record only, thereby, preventing any expert witness opinions. Id. at 29.
The ESA citizen-suit provision provides a private right of action. Wash.
Toxics Coal. V. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005). The Ninth Circuit in
Washington Toxics determined that “suits to compel agencies to comply with the
substantive provisions of the ESA arise under the ESA citizen-suit provision,” not
the APA. Id. at 1030, 1034. The Ninth Circuit further clarified in Western
Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir. 2011), that
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evidence outside the administrative record may be considered for the limited
purpose of reviewing an ESA claim.
The APA provides the standard of review for the ESA, but does not dictate
the scope of judicial review. The Ninth Circuit has determined that ESA citizensuit claims, unlike claims reviewed under the APA, are not limited to the
administrative record. See Conservation Cong. v. U.S. Forest Serv., 2017 WL
4340254 at *2 (E.D. Cal. 2017); Yurok Tribe v. U.S. Bureau of Reclamation, 231
F.Supp.3d 450, 467-69 (N.D. Cal. 2017); Ellis v. Housenger, 2015 WL 3660079 at
*3-4 (N.D. Cal. 2015); Defs of Wildlife v. Martin, 454 F.Supp.2d 1085, 1094 (E.D.
Wash. 2006); Wild Fish Conservancy v. Nat’l Park Serv., 2012 WL 5384896 at *1
(W.D. Wash. 2012); Conservation Cong. v. Finley, 2012 WL 1564946 at *1 (N.D.
Cal. 2012); Or. Nat. Desert Ass’n v. Kimbell, 593 F.Supp.2d 1217, 1219-20 (D. Or.
2009).
Admissibility of the expert statements will be determined after the Court has
had the opportunity to review the statements.
Accordingly, IT IS HEREBY ORDERED:
1. Federal Defendant’s Motion to Limit Judicial Review is DENIED to the
extent that Plaintiffs seek to introduce expert testimony. (Doc. 91.)
2. Plaintiffs shall file with the Court their Expert Disclosures with Reports, on
or before, December 29, 2017.
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3. Federal Defendants and TransCanada shall file with the Court their Rebuttal
Expert Disclosures with Reports, on or before, January 26, 2018.
DATED this 12th day of December, 2017.

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