United States District Court, D. Idaho
CENTER FOR BIOLOGICAL DIVERSITY, WESTERN WATERSHEDS PROJECT, FRIENDS OF THE CLEARWATER, and WILDEARTH GUARDIANS, Plaintiffs,
C.L. “BUTCH” OTTER, Governor of Idaho, in his official capacity; VIRGIL MOORE, Director of the Idaho Department of Fish and Game, in his official capacity; BRAD CORKILL, FRED TREVEY, BOB BAROWSKY, MARK DOERR, RANDY BUDGE, KENNY ANDERSON, and WILL NAILLON, members of the Idaho Fish and Game Commission, in their official capacities, Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge United States District Court
Court has before it a motion to reconsider based on new
evidence. The motion is fully briefed and at issue. For the
reasons expressed below, the Court will deny the motion at
this time to allow plaintiffs to conduct discovery concerning
the new evidence. The denial of the motion is without
prejudice to the right of the State to refile the motion
after completion of the discovery.
plaintiffs - four environmental groups - have sued officials
of the State of Idaho, alleging that the State's trapping
regulations fail to sufficiently protect the Canada Lynx, a
species that is listed as threatened under the Endangered
Species Act (ESA). Plaintiffs point out that trappers,
licensed by the State, have captured four lynx in traps meant
for other species over the last three-and-a-half years. They
urge the Court to impose specific regulatory changes on
trapping in lynx habitat that would reduce the chance that
lynx would be caught in traps intended to lure other species.
side filed a motion for summary judgment. Plaintiffs sought
to impose regulatory changes on trapping throughout the
State, while the State argued that no changes were required.
To resolve these motions, the Court reviewed the status of
the lynx in each of the seven Regions defined by the Idaho
Department of Fish and Game to determine if it was likely
that lynx would be inadvertently trapped in those Regions.
of those Regions, the Court concluded that it was not likely
that lynx would be inadvertently trapped in the future and
denied plaintiffs' request for injunctive and declaratory
relief. But in two of the Regions - the northern-most Regions
- the Court did find it likely that lynx would be
inadvertently trapped and directed the parties to submit a
proposed remedy to address this conclusion.
State responded by filing a motion to reconsider supported by
a new Declaration of a key witness, Bridget Fahey, the
Division Chief for Conservation and Classification for the
Fish and Wildlife Service (FWS). Fahey had filed a
Declaration in the first round of summary judgment motions
but it was not clear whether she was speaking officially for
the FWS. Thus, the Court did not accord to her the deference
that might otherwise be due to an agency official
interpreting agency materials.
ambiguity is clarified in Fahey's new Declaration: She
describes in detail the official authorization she received
from the FWS to testify in this case. See Fahey
Declaration (Dkt. No. 105-2). It is now clear that
Fahey's testimony is the official position of the FWS.
complain that they have not been able to take discovery
regarding Fahey's opinions. Her original Declaration was
filed only after the plaintiffs had filed their motion for
summary judgment. The State was not hiding the ball here -
they had provided in initial disclosures an opinion Fahey
gave in another case that was somewhat similar to that given
here. See Declaration (Dkt. No. 113-3). The State
was originally going to call another FWS witness, but when he
became unavailable, the State's counsel discussed this
verbally with plaintiffs' counsel and notified him that
Fahey may be called instead. But the State did not list Fahey
on its witness list, which may have caused some confusion,
and the plaintiffs had no real opportunity to take any
discovery concerning her original Declaration, given the
timing of its filing. Plaintiffs had little incentive to ask
for a delay to conduct discovery because Fahey's
Declaration did not clearly address her authority to speak
for the FWS, a ground for challenge that did not require
discovery and was adopted by the Court in its earlier
brief review shows that both parties were proceeding in good
faith and with due diligence. Nevertheless, the plaintiffs
have not been able to depose Fahey and are entitled to do so
before the motion to reconsider is resolved. The Court will
therefore deny the motion to reconsider without prejudice to
the right of the State to refile the motion after plaintiffs
have had an opportunity to depose Fahey and conduct any
necessary discovery with the FWS.
accordance with the Memorandum Decision set forth above, NOW
THEREFORE IT IS HEREBY ORDERED, that the motion to reconsider
(docket no. 105) is DENIED without prejudice to the right of
the State to refile the motion after the plaintiffs have been
able to take discovery of Bridget Fahey and the FWS.
FUTHER ORDERED, that the plaintiffs shall conduct the
discovery of Bridget Fahey and the FWS ...