Wildearth Guardians v. Hoover et al
Filing
68
ORDER consolidating cases. Defendant-Intervenors' request to intervene in the member case (CV 17-99-M-DWM) is granted. IT IS FURTHER ORDERED that the defendants shall file their answers separately under the two respective case numbers in CM/ECF on or before 8/31/17. Thereafter, all parties shall file all documents in the lead case number CV 16-65-M-DWM and spread the particular documents to the member case. Proposed case management plan due on or before 9/25/17. Signed by Judge Donald W. Molloy on 8/9/2017. (NOS)
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
AUG 10 2017
Clerk.,
us . .
District d{~~trict Court
M. •v1ontana
issou/a
Lead Case No.
CV 16-65-M-DWM
WILDEARTH GUARDIANS,
Plaintiff,
Member Case No.
CV 17-99-M-DWM
and
CENTER FOR BIOLOGICAL DIVERSITY,
ORDER
Consolidated-Plaintiff,
vs.
UNITED STATES FISH & WILDLIFE
SERVICE; et al.,
Defendants,
and
MONTANA TRAPPERS ASSOCIATION,
NATIONAL TRAPPERS ASSOCIATION,
and FUR INFORMATION COUNCIL OF
AMERICA,
Defendant-Intervenors.
There being common issues of fact and law, consolidation of the abovecaptioned actions is appropriate pursuant to Rule 42(a)(2) of the Federal Rules of
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Civil Procedure. (See CV 16-65-M-DWM, Docs. 63, 64, 66; CV
17-99-M-DWM, Doc. 11.) There is some disagreement, however, as to the
extent of consolidation. Defendant-Intervenors (1) request that the plaintiffs be
required to file a single, consolidated complaint in the joint action and (2) seek an
order granting them defendant-intervenor status in CV 17-99-M-DWM. (Docs.
64, 65.) Plaintiff WildEarth Guardians and Plaintiff Center for Biological
Diversity object to both requests, and insist separate complaints and separate
dispositive briefing are necessary. (See Docs. 67; CV 17-99-M-DWM, Doc. 13.)
The plaintiffs emphasize that while they both raise claims under the National
Environmental Policy Act ("NEPA"), only WildEarth brings a challenge under the
Endangered Species Act ("ESA"). They further argue that Defendant-Intervenors
should have filed their request to intervene in CV 17-99-M-DWM.
As argued by Defendant-Intervenors, the two complaints and the claims
raised therein are very similar. For example, both plaintiffs allege NEPA
violations based on the agency's effects analysis and its failure to prepare an
Environmental Impact Statement. That said, WildEarth also raises challenges
under the ESA. Additionally, WildEarth's NEPA challenges focus in part on the
agency's preparation of an incidental take statement for Canada lynx and the
accuracy of the agency's scientific analysis. Because the plaintiffs are distinct
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organizations that raise similar, but not identical claims, they are not required to
file a consolidated complaint. The defendants shall answer the individual
complaints in each case.
That said, the plaintiffs' claims are similar enough that to avoid duplicative
briefing, they must jointly brieftheir NEPA claims. WildEarth may separately
brief its ESA claims (both subject to reasonable word limits). The plaintiffs shall
also file joint statements of undisputed and disputed facts. The plaintiffs shall also
coordinate prior to filing any motions and shall jointly file any motions seeking a
similar action by the Court on the same issue. These procedures will streamline
the pending litigation and conserve judicial resources without prejudicing the
parties' rights to litigate their respective causes of action independently and
vigorously in their own best interest.
Next, given the similarity of the issues and the public interest in
adjudicating this matter effectively and efficiently, Defendant-Intervenors' request
to intervene in the member case (CV 17-99-M-DWM) is granted. See Fed. R.
Civ. P. 24(a)(2). Other than the procedural question of where the motion to
intervene should have been filed, the plaintiffs' objections to intervention in the
member case is limited to their disagreement with consolidation of complaints and
briefing. As discussed above, a certain amount of consolidation is appropriate and
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will not prejudice the plaintiffs. As a result, the Montana Trappers Association,
National Trappers Association, and Fur Information Council of America may
intervene in CV 17-99-M-DWM. Defendant-Intervenors shall file answers in
both the lead and member cases. However, because their interests are similar,
Defendant-Intervenors shall also be limited to joint filings for summary judgment
(both briefs and statements of fact) and are further required to coordinate prior to
filing any motions, and to jointly file any motions seeking a similar action by the
Court on the same issue.
Accordingly, IT IS ORDERED that the above-captioned cases are
consolidated for all further proceedings under the case number CV 16-65-MDWM and captioned as shown above. The Clerk of Court shall file this Order in
the docket for each case.
IT IS FURTHER ORDERED that the defendants in each case shall file their
answers separately under the two respective case numbers in CM/ECF on or
before August 31, 2017. Thereafter, all parties shall file all documents in the lead
case number CV 16-65-M- DWM and spread the particular documents to the
member case.
IT IS FURTHER ORDERED that:
1. Rule 26(f) Conference and Case Management Plan. The parties shall
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file a proposed case management plan on or before September 25, 2017. The
parties shall e-mail a copy of the proposed case management plan in WordPerfect
(preferred) or Word format to dwm_propord@mtd.uscourts.gov. Lead trial
counsel for the respective parties shall, at least two weeks before the proposed
case management plan is due, meet to discuss the nature and basis of their claims
and defenses, to develop the proposed case management plan, and to discuss the
possibilities for a prompt settlement or resolution of the case. See Fed. R. Civ. P.
1. The case management plan resulting from the Rule 26(f) conference is not
subject to revision, absent compelling reasons.
2. Contents of Case Management Plan. The proposed case management
plan should contain deadlines for the following pretrial motions and events or
should state that such deadlines are not necessary:
Motions to Dismiss (fully briefed)
Certification of Administrative Record
Motions to Supplement the Administrative Record
Motions to Amend the Pleadings
Completion of Discovery
Motions for Summary Judgment (fully briefed)
Additional Deadlines Agreed to by the Parties
"Fully briefed" means that the motion, the brief in support of the motion, and the
opposing party's response brief are filed with the Court by the deadline.
The parties' proposed schedule should recognize the requirements for joint
5
briefing outlined above.
2. Representation at Rule 26(f) Conference. Each party to the case must
be represented at the Rule 26( f) conference by at least one person with authority to
enter into stipulations.
3. Stipulation to Foundation and Authenticity. Pursuant to Rule
16(c)(3 ), the parties shall either:
(a)
enter into the following stipulation:
The parties stipulate as to foundation and authenticity for all written
documents produced in pre-trial disclosure and during the course of
discovery. However, if receiving counsel objects to either the
foundation or the authenticity of a particular document, then receiving
counsel must make specific objections to producing counsel in writing
within a reasonable time after receiving the document. A "reasonable"
time means that producing counsel has sufficient time to lay the
foundation or establish authenticity through depositions or other
discovery. Ifthe producing party objects to a document's foundation or
authenticity, the producing party shall so state, in writing, at the time of
production, in sufficient time for receiving counsel to lay the foundation
or establish authenticity through depositions or other discovery. All
other objections are reserved.
or
(b) state why a stipulation to authenticity and foundation is not
appropriate for the case.
4. Administrative Record. If an administrative record is involved, it must
be filed on CDs or a thumb drive in an indexed and searchable format with
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hyperlinks to record citations. The government shall provide the plaintiffs with
the administrative record on or before the administrative record filing deadline set
out in ~ 2, supra. The government must also file with the Court a single hard copy
of the following documents (along with any attachments or appendices), to the
extent any such documents are at issue in the case:
Final Environmental Impact Statement/Environmental Assessment
Supp. Environmental Impact Statement/Environmental Assessment
Record of Decision or Decision Notice
Forest Plan or other programmatic planning document
Biological Assessment
Biological Opinion
Finding of No Significant Impact
Final Listing/Delisting Rule
5. Acronyms. In all documents filed with the Court, the parties shall not
use any acronyms except for the following commonly understood acronyms in
record review cases: NEPA, NFMA, APA, ESA, EIS, and EA.
Dated this
:r..:.
day of August, 201 7.
lloy, District Judge
·strict Court
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