Free Memorandum in Opposition - District Court of California - California

Case 3:08-cv-03884-MHP

Document 7

Filed 08/19/2008

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

RONALD J. TENPAS Assistant Attorney General JEAN WILLIAMS, Chief ROBERT P. WILLIAMS, Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Tel: (202) 305-0206, Facsimile: (202) 305-0275 [email protected] Attorneys for Federal Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) Plaintiffs, ) ) v. ) ) U.S. FISH AND WILDLIFE SERVICE, NATIONAL ) OCEANIC AND ATMOSPHERIC ADMINISTRATION,) NATIONAL MARINE FISHERIES SERVICE, and U.S. ) FOREST SERVICE, ) ) Defendants. ) _______________________ _________________________) CENTER FOR BIOLOGICAL DIVERSITY, LOS ) PADRES FOREST WATCH, SIERRA CLUB, ) DEFENDERS OF WILDLIFE, CALIFORNIA NATIVE ) PLANT SOCIETY, CALIFORNIA WILDERNESS ) COALITION, and THE WILDERNESS SOCIETY, ) ) Plaintiffs, ) ) v. ) ) U.S. DEPARTMENT OF AGRICULTURE, EDWARD ) SCHAFER, in his official capacity as U.S. Secretary of ) Agriculture, U.S. FOREST SERVICE, ABIGAIL ) KIMBELL, in her official capacity as Chief of the Forest ) Service, and RANDY MOORE, in his official capacity as ) Regional Forester for the Pacific Southwest Region of the ) Forest Service, ) ) Defendants. ) _______________________________________________) CENTER FOR BIOLOGICAL DIVERSITY, LOS PADRES FOREST WATCH, SIERRA CLUB, DEFENDERS OF WILDLIFE, and CALIFORNIA NATIVE PLANT SOCIETY,

Case No. 08-cv-01278-MHP FEDERAL DEFENDANTS' RESPONSE TO PLAINTIFFS' ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED

Case No. 08-cv-03884-JSW

Center for Biological Diversity, et al. v. USFWS, et al., Civ. No. 3:08-cv-01278-MHP Fed. Defs'Resp. to Pls' Admin. Mot. to Consider Whether Cases Should be Related

Case 3:08-cv-03884-MHP

Document 7

Filed 08/19/2008

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants U.S. Fish and Wildlife Service ("FWS"), National Oceanic and Atmospheric Administration and its designee, the National Marine Fisheries Service (hereinafter referred to as "NMFS")), and U.S. Forest Service (collectively "Federal Defendants"), respectfully submit this response to the administrative motion filed by the plaintiffs in Center for Biological Diversity, et al. v. U.S. Department of Agriculture, et al., Case No. 08-cv-3884 JSW (N.D. Cal.), to consider whether that case should be related to the above-captioned case under Local Rules 3-12 and 711. Local Rule 3-12(a) states that an action is related to another when: "(1) The actions concern substantially the same parties, property, transaction or event; and (2) It appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." With respect to the "parties, property, transaction or event" prong of the analysis, the above-captioned case and Case No. 08-cv-3884 concern several of the same parties and the same general subject matter ­ the Forest Service's revised Forest Plans for the Cleveland, Angeles, San Bernardino, and Los Padres National Forests ­ however the legal issues and the focus of the Court's analysis will be different in each of the two cases. The above-captioned case involves a discrete legal challenge under the Endangered Species Act ("ESA"), 16 U.S.C. § 1536, to the 2005 "Biological and Conference Opinions on the Revised Land and Resource Management Plans for the Four Southern California National Forests" prepared by FWS (the "2005 FWS BiOp"), the 2005 "Biological Opinion" for the Los Padres National Forest and Cleveland National Forest prepared by NMFS (the "2005 NMFS BiOp"), and the Forest Service's decision to rely on those biological opinions analyzing the potential effects of the revised Forest Plans on ESA-listed species. Plaintiffs allege that the FWS and NMFS Biological Opinions include "Incidental Take Statements," which are invalid. Federal Defendants maintain that the programmatic Biological Opinions do not include Incidental Take Statements and that the Biological Opinions are sound, and in compliance with the requirements of the ESA and its
Center for Biological Diversity, et al. v. USFWS, et al., Civ. No. 3:08-cv-01278-MHP Fed. Defs'Resp. to Pls' Admin. Mot. to 2 Consider Whether Cases Should be Related

Case 3:08-cv-03884-MHP

Document 7

Filed 08/19/2008

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

implementing regulations. In Case No. 08-cv-3884, the Plaintiffs in the above-captioned case, joined by two additional Plaintiffs ­ California Wilderness Coalition and The Wilderness Society ­ bring a challenge against the Forest Service under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f, to the four revised National Forest Plans. Unlike the above-captioned case, FWS and NMFS are not Defendants in Case No. 08-cv-3884. As Case No. 08-cv-3884 involves only claims brought under NEPA, the focus of the Court's analysis will be the Forest Service's environmental impact statement ("EIS"), and determining whether the EIS satisfies the requirements of NEPA and its implementing regulations. This stands in contrast to the abovecaptioned case, which will focus on FWS' and NMFS' programmatic biological opinions and whether they comply with the ESA and its implementing regulations. Because the legal issues will be different in each case, Federal Defendants do not believe that there is a risk of conflicting results if the two cases were to be conducted before different Judges. However, with regard to duplication of judicial labor, Federal Defendants agree that having both cases heard by the same Judge may prevent some duplication of effort. In light of the foregoing, Federal Defendants not oppose Plaintiffs' request to relate the two cases, provided that doing so does not alter or otherwise affect the scheduling order in place for the above-captioned case (Dckt. No. 19), which includes a schedule for filing the administrative records and cross-motions for summary judgment. However, given the substantive differences between the two matters, Federal Defendants would oppose consolidation of the two cases. // // // // // //
Center for Biological Diversity, et al. v. USFWS, et al., Civ. No. 3:08-cv-01278-MHP Fed. Defs'Resp. to Pls' Admin. Mot. to 3 Consider Whether Cases Should be Related

Case 3:08-cv-03884-MHP

Document 7

Filed 08/19/2008

Page 4 of 4

1 2 3 4 5 6 7 8 9

Dated: August 19, 2008 Respectfully submitted, RONALD J. TENPAS Assistant Attorney General JEAN E. WILLIAMS, Section Chief LISA L. RUSSELL, Assistant Section Chief

/s/ Robert P. Williams ROBERT P. WILLIAMS, Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section
Attorneys for Federal Defendants

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Center for Biological Diversity, et al. v. USFWS, et al., Civ. No. 3:08-cv-01278-MHP Fed. Defs'Resp. to Pls' Admin. Mot. to 4 Consider Whether Cases Should be Related

OF COUNSEL: Sarah Birkeland USDA, Office of the General Counsel 33 New Montgomery Street, 17th Floor San Francisco, CA 94105 Cheryll Dobson, Assistant Regional Solicitor USDOI, Office of the Regional Solicitor Pacific Southwest Region 2800 Cottage Way, Room E-1712 Sacramento, CA 95825 Deanna Harwood NOAA, Office of General Counsel 501 W. Ocean Blvd., Suite 4470 Long Beach, CA 90802