Free Statement of Non-Opposition - District Court of California - California

Case 3:08-cv-03884-MHP

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Filed 08/19/2008

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RONALD J. TENPAS Assistant Attorney General BARCLAY T. SAMFORD (NMBN 12323) Trial Attorney U.S. Department of Justice Environment & Natural Resources Div. 1961 Stout St., 8th Floor Denver, CO 80294 Telephone: (303) 844-1475 Facsimile: (303) 844-1350 Attorneys for Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

CALIFORNIA RESOURCES AGENCY, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. ___________________________________________

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Case No. 08-cv-01185-MHP

FEDERAL DEFENDANTS' RESPONSE TO PLAINTIFFS' ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED Case No. 08-cv-3884-JSW

Fed Defs.' Resp. to Mot. to Relate, 08-cv-01185-MHP and 08-cv-3884-JSW

Case 3:08-cv-03884-MHP

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Filed 08/19/2008

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Defendants the United States Department of Agriculture, Ed Schafer, Secretary of Agriculture, Gail Kimball, Chief of the United States Forest Service, and Randy Moore, Regional Forester, Pacific Southwest Region, United States 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 earlier filed case, California Resources Agency v. U.S. Department of Agriculture, 08-cv-01185-MHP, under Local Rules 3-12 and 7-11. 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, Case No. 08-cv-01185-MHP and Case No. 08-cv-3884 do concern the same general subject matter ­ the Forest Service's revised Forest Plans for the Cleveland, Angeles, San Bernardino, and Los Padres National Forests. Both cases also involve the same defendants, but substantially different plaintiffs. Plaintiffs in Case No. 08-cv-01185-MHP are governmental entities: the State of California, as represented by the Attorney General, and the California Resources Agency and California Department of Fire Protection. Plaintiffs in Case No. 08-cv-3884 are all private nonprofit organizations. The legal claims in both cases also differ. While both cases allege violations of the National Environmental Policy Act ("NEPA"), in the above captioned case, the State of California alleges violations of the National Forest Management Act ("NFMA") with regard to the Forest Service's consultation with the state in its capacity as a government entity. No such claim is or could be brought by the non-profit organization plaintiffs in Case No. 08-cv3884. With regard to duplication of judicial labor, Defendants agree that Case No. 08-cv01185-MHP and Case No. 08-cv-3884 involve review of the same administrative record and having both cases heard by the same Judge may prevent some duplication of effort. Fed Defs.' Resp. to Mot. to Relate, 08-cv-01185-MHP and 08-cv-3884-JSW -1-

Case 3:08-cv-03884-MHP

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Filed 08/19/2008

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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. However, given the substantive differences between the two matters and the extent to which the litigation in California Resources Agency v. U.S. Department of Agriculture, 08-cv-01185-MHP has advanced, Defendants would oppose consolidation of the two cases. Dated this 19th day of August, 2008. Respectfully submitted, RONALD J. TENPAS Assistant Attorney General /s/ Barclay T. Samford BARCLAY T. SAMFORD Trial Attorney U.S. Department of Justice Environment & Natural Resources Division 1961 Stout Street, 8th Floor Denver, CO 80294 OF COUNSEL: Sarah Birkeland USDA, Office of the General Counsel 33 New Montgomery Street, 17th Floor San Francisco, CA 94105

Fed Defs.' Resp. to Mot. to Relate, 08-cv-01185-MHP and 08-cv-3884-JSW

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