Crow Indian Tribe et al v. United States of America et al

Filing 40

ORDER consolidating cases: CV-17-89-M-DLC, CV-17-117-M-DLC, CV-17-118-M-DLC, CV-17-119-M-DLC, CV-17-123-M-DLC. LEAD CASE NUMBER IS CV-17-89-M-DLC. Administrative Record due by 1/5/2018. Status Report due by 3/23/2018. SEE ORDER FOR ADDITIONAL DETAILS/DEADLINES. Signed by Judge Dana L. Christensen on 12/5/2017. Associated Cases: 9:17-cv-00089-DLC, 9:17-cv-00117-DLC, 9:17-cv-00118-DLC, 9:17-cv-00119-DLC, 9:17-cv-00123-DLC (ASG)

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

DEC 0 5 2017
ci~.JOfDi&trict Court
--Mi

Montane
SSOu/a

CV 17-89-M-DLC

CROW INDIAN TRIBE; et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA; et al.,

(Consolidated with Case Nos.
CV 17-117-M-DLC
'
CV 17-118-M-DLC
'
CV 17-119-M-DLC
'
and CV 17-123-M-DLC)

Federal-Defendants,
and
STATE OF WYOMING,
Defendant-Intervenor.
Before the Court are five cases involving the de listing of the Greater
Yellowstone ecosystem grizzly bear ("GYE grizzly bear") from the Federal List of
Endangered and Threatened Wildlife under the Endangered Species Act ("ESA"):
Crow Indian Tribe et al. v. United States ofAmerica et al., CV 17-89-M-DLC;
Humane Soc y of the US. et al. v. US. Fish & Wildlife Serv. et al., CV

17-117-M-DLC; Wildearth Guardians v. Zinke et al., CV 17-118-M-DLC; N.
Cheyenne Tribe et al. v. Zinke et al., CV 17-119-M-DLC; and All. for the Wild
Rockies et al. v. Zinke et al., CV 17-123-M-DLC. On November 13, 2017, the

-1-

Court found that all cases involved common questions of law and fact and
informed the parties that it was inclined to consolidate the cases. The parties were
instructed to show cause as to why these five cases should not be consolidated
under Federal Rule of Civil Procedure 42(a).
On November 29, 2017, the parties in all five cases submitted their
responses to the Court's Order, indicating that they do not oppose consolidation.
Crow Indian Tribe et al. v. United States ofAmerica et al., CV 17-89-M-DLC;

(Doc. 38); Humane Soc '.Y of the US. et al. v. US. Fish & Wildlife Serv. et al., CV
17-117-M-DLC (Doc. 21); Wildearth Guardians v. Zinke et al., CV
17-118-M-DLC (Doc. 23); N. Cheyenne Tribe et al. v. Zinke et al., CV
17-119-M-DLC (Doc. 21 ); and All. for the Wild Rockies et al. v. Zinke et al., CV
17-123-M-DLC (Doc. 16). However, the parties request that the Court retain
each case's separate identity and separate briefing.
Further, Federal Defendants contend that there is substantial similarity in
the claims and that the parties and the Court should revisit briefing procedures as
well as word limitations once Plaintiffs and Defendant-Intervenors have had a
chance to review the Administrative Record. Plaintiffs agree that the scope of the
issues are not yet fully cognizable, and will endeavor to confer with Federal
Defendants and Defendant-Intervenors for adoption of a mutually agreeable
-2-

briefing schedule.
Finally, the United States Forest Service indicated that it may publish a
notice in the Federal Register seeking public comment on a recent D.C. Circuit
Court of Appeals ruling, Humane Society of the United States v. Zinke, 865 F.3d
585 (D.C. Cir. 2017), that could affect its June 30, 2017, grizzly Final Rule. Thus,
the Court was made aware that if this occurs, Federal Defendants will likely move
for a stay of proceedings during the pendency of this administrative process.
Plaintiffs have indicated that they are likely to oppose any request for a
stay of proceedings.
Considering the joint case management plan in each of these consolidated
cases and understanding the parties' respective arguments and concerns,
IT IS ORDERED that:
(1)

Case Nos. CV 17-89-M-DLC, CV 17-117-M-DLC, CV
17-118-M-DLC, CV 17-119-M-DLC, and CV 17-123-M-DLC are
CONSOLIDATED pursuant to Federal Rule of Civil Procedure
42(a)(2). The cases will retain their separate characters and the Court
will issue a separate judgment in each case. Pursuant to the Guide for
Filing in the District of Montana regarding consolidated cases, all
documents shall bee-filed in the lead case (CV 17-89-M-DLC) and
-3-

spread to the appropriate member case (CV 17-117-M-DLC, CV
17-118-M-DLC, CV 17-119-M-DLC, or CV 17-123-M-DLC).
When prompted to spread, users should answer "yes". Further, from
this point forward, any brief filed in any case shall refer only to the
docket and associated document numbers in the lead case CV
17-89-M-DLC. 1
(2)

If Federal Defendants intend to move for a stay of proceedings, such

motion shall be filed no later than 14 days after any notice is
published in the Federal Register regarding the Final Rule. Plaintiffs
may oppose Federal Defendants' motion for stay. Any briefing
should proceed in accordance with this District's Local Rules.
(3)

Federal Defendants shall produce the Administrative Record for the
Final Rule for counsel by January 5, 2018. Because the record is
likely to be voluminous, the parties have stipulated that the record
shall to be served by Federal Defendants in electronic format. A copy
of the record shall be sent to each counsel of record in each case.

(4)

On or before March 5, 2018, Plaintiffs shall notify Federal

1

For example, if a party files a motion for summary judgment in CV 17-117-M-DLC,
that motion and brief in support should cite to the docket and corresponding document numbers
under the lead case CV 17-89-M-DLC, not the document numbers in CV 17-117-M-DLC.
-4-

Defendants whether Plaintiffs believe the Administrative Record is
complete, requires supplementation with additional materials, or
whether Plaintiffs will seek discovery regarding the sufficiency of the
record. Should a dispute arise regarding the Administrative Record,
the applicability of any exceptions to record review, or any asserted
need for judicial review of extra-record materials, the Parties shall
attempt to negotiate a resolution. The Parties shall file a status report
by March 23, 2018, notifying the Court that either: (a) they have

reached an agreement on the administrative record and intend to
proceed to summary judgment briefing as set forth in paragraph 4
below; (b) they need more time to negotiate regarding the record; or
(c) Plaintiffs intend to file a motion to resolve the record dispute.
Any such motion shall be filed by April 13, 2018. Briefing on any
such motion shall proceed in accordance with the Local Rules.
(5)

After the Administrative Record is finalized, the Court will set a
status conference to set a briefing schedule, set word limitations, and
discuss the issues presented and potential joint briefing on similar
issues. At least one counsel of record for each party in each case
shall be present in Missoula, Montana for this status conference, with
-5-

authority to enter into a binding scheduling order.
DATED this

5'~ day ofDecember.

017.

Dana L. Christensen, Chief Judge
United States District Court

-6-