United States District Court, D. Idaho
WILDLANDS DEFENSE; ALLIANCE FOR THE WILD ROCKIES; and NATIVE ECOSYSTEMS COUNCIL Plaintiff,
CECILIA SEESHOLTZ, in her official capacity as Boise National Forest Supervisor; TONY TOOKE, in his official capacity as Chief of the United States Forest Service; UNITED STATES FOREST SERVICE; and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge.
Court has before it a motion for leave to file a surreply
brief. The final brief was received on March 5, 2018, and the
motion is now at issue. For the reasons explained below, the
Court will grant the motion
action, plaintiffs seek to enjoin two Forest Service projects
to log burned timber. In January of 2018, the Court heard
oral argument on cross-motions for summary judgment, and took
the motions under advisement. Before the Court could render a
decision, plaintiffs filed the motion now before the Court,
seeking leave to file a surreply brief arguing that the Court
should consider new evidence that the Forest Service is
currently engaging in consultation with the Fish and Wildlife
Service (FWS) under § 7 of the Endangered Species Act
(ESA) to consider protections for the bull trout. The
plaintiffs cite caselaw requiring agencies to hold projects
in abeyance until formal consultation with the FWS has been
completed. The plaintiffs allege that they were unaware of
this new evidence until the Forest Service moved to dismiss
an unrelated case on the ground that the consultation with
the FWS mooted the claims for consultation in that case.
Hearing about that consultation for the first time,
plaintiffs immediately filed the present motion seeking leave
to file a surreply brief to argue that the consultation
requires a halt to the two logging projects at issue here.
The Government responds that plaintiffs cannot litigate this
issue because it was not included in plaintiffs' Notice
of Intent to Sue, which is a jurisdictional prerequisite to
filing this action.
Court must determine whether it has jurisdiction to consider
plaintiffs' argument contained in their surreply brief,
and, if so, whether to allow that brief to be filed. The
merits of the arguments made in the surreply brief are not at
primary purpose of the 60-day notice requirement is to give
an agency a chance to cure the flaws and avoid litigation.
Conservation Congress v. Finley, 774 F.3d 611, 618,
(9th Cir. 2014). The plaintiffs sent their Notice to
defendants on June 26, 2017. The Notice claims that the two
logging projects fail to comply with the Boise National
Forest Plan. More specifically, the Notice claims that the
projects failed to comply with the Plan's protections for
bull trout, including the buffer zones known as Resource
Conservation Areas (RCA) the water quality measures known as
Watershed Condition Indicators (WCIs).
Notice challenged as insufficient the Forest Service's
consultation with the FWS under § 7 of the ESA. That
consultation - a much narrower one than the consultation
constituting the new evidence discussed above - culminated in
May of 2017 with a finding by the FWS that the two logging
projects were not likely to adversely affect the bull trout
or the Canada Lynx.
the plaintiffs did not know when they drafted their Notice in
June of 2017, was that the staff of the Forest Service and
FWS had been meeting for several months to discuss another,
much broader, evaluation. The agencies were proposing to
evaluate, at a programmatic level, the impact of Forest Plans
on bull trout habitat across its entire range, a swath of
territory including the Boise National Forest and 26 other
National Forests. Those agency meetings eventually resulted
in a formal consultation that is still ongoing, and is not
expected to be completed until later this year. The surreply
brief that plaintiffs seek to file in the motion now under
consideration argues that the two logging projects must be
halted until that consultation is completed.
Forest Service objects to the filing of the surreply brief,
arguing that plaintiffs' Notice said nothing about this
much broader consultation. Arguing that the Notice is a
jurisdictional prerequisite to suit, and must identify with
specificity the agency's flaws, the Forest Service claims
that plaintiffs' Notice fails this test.
Court disagrees. The “notice need not provide the exact
details of the legal arguments that the plaintiffs intend to
eventually make.” Conservation Congress, 774
F.3d at 618. Here, the plaintiffs' Notice
claimed that the Forest Service's narrower consultation
with the FWS was insufficient, and that the agency must
initiate formal consultation with the FWS because the logging
projects violated the Boise National Forest Plan provisions
for bull trout habitat. That allegation put the Forest
Service on notice that plaintiffs would also demand that the
logging projects be halted until this much broader
consultation was completed.
these reasons, the Court finds that the motion for leave to