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Californians For Alternatives To Toxics, A Non-Profit v. U.S. Fish and Wildlife Service; Alexandra

March 2, 2011

CALIFORNIANS FOR ALTERNATIVES TO TOXICS, A NON-PROFIT CORPORATION; WILDERNESS WATCH, A NON-PROFIT CORPORATION; THE FRIENDS OF SILVER CREEK, A CALIFORNIA NON-PROFIT CORPORATION; LAUREL AMES, AN INDIVIDUAL AND ANN MCCAMPBELL, AN INDIVIDUAL,
PLAINTIFFS,
v.
U.S. FISH AND WILDLIFE SERVICE; ALEXANDRA PITTS, IN HER OFFICIAL CAPACITY; UNITED STATES FOREST SERVICE; JEANNE M. HIGGINS, IN HER OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on plaintiffs Californians for Alternatives to Toxics ("CAT"), Wilderness Watch, The Friends of Silver Creek, Laurel Ames, and Ann McCampbell's (collectively "plaintiffs") motion "to stay briefing schedule and to supplement administrative record."*fn1 Defendants United States Fish and Wildlife Service ("USFWS") and United States Forest Service ("USFS") (collectively, "defendants") oppose the motion in part. For the reasons set forth below,*fn2 plaintiffs' motion is GRANTED in part and DENIED in part.

BACKGROUND

This case arises out of plaintiffs' challenge to defendants' Final Environmental Impact Statement ("FEIS") related to the Paiute Cutthroat Trout Restoration Project (the "Project") and authorization of the Project. (First Am. Compl., filed Sept. 20, 2010.) The USFWS issued a Notice of Availability for the FEIS that was published in the Federal Register on April 9, 2010. The FEIS proposed and analyzed three alternatives to restore the Paiute Cutthroat Trout ("PCT"): (1) a No Action Alternative; (2) the Proposed Action Alternative; and (3) a Combined Physical Removal Alternative. On May 20, 2010, the USFWS issued a Record of Decision that identified the Proposed Action Alternative as its selected alternative. The project is scheduled to be implemented in late summer or early fall 2011.

On June 15, 2010, plaintiffs filed a complaint challenging the adequacy of the FEIS and defendants' authorization of the Project. Plaintiffs subsequently filed the operative First Amended Complaint on September 20, 2010. During the same time period, plaintiffs filed a parallel state action challenging state agency involvement in and approval of the Project.

On September 3, 2010, the parties submitted a Joint Status Report, which provided that the USFWS would file and serve the administrative record by October 30, 2010. However, on October 29, 2010, the parties filed a stipulation, later ordered by the court, for an extension to file the administrative record. Subsequently, the court entered the Pretrial Scheduling Order ("PSO"), which provided that the administrative record would be filed by November 7, 2010. Any request by plaintiffs to supplement the Administrative Record was due by December 3, 2010.*fn3 Further, the PSO provided that (1) plaintiffs were to file their opening brief by January 21, 2011; (2) defendants were to file their opening and opposition briefs by February 18, 2011;

(3) plaintiffs were to file their opposition and reply briefs by March 18, 2011; and (4) defendants were to file their reply briefs by April 8, 2011. Hearing on the motions was set for April 29, 2011.

On December 3, 2010, CAT sent an email to defendants, requesting that the federal administrative record be supplemented to include (1) documents contained in the state administrative record; and (2) documents related to the planning and decisions for prior versions of the Project. (Decl. of Julia A. Olson in Supp. of Pl.'s Mot. ("Olson Decl."), filed Jan. 21, 2011, ¶ 5.) On December 17, 2010, defendants responded to the request, asserting that (1) the Project was approved under two independent statutory schemes; (2) the state and federal agencies prepared their own administrative records; and (3) such administrative records may include different documents. (Id. ¶ 6.) Between late December 2010 and early January 2011, counsel for plaintiffs and defendants exchanged indices relating to the state and federal administrative records. (Id. ¶¶ 7-8.) On January 20, 2011, CAT emailed defendants a letter, which provided a detailed summary comparing the state and federal administrative records and requested that the state and federal agencies agree to use a single administrative record in the parallel proceedings. (Id. ¶9.) Defendants responded, asserting that, in their view, the record was complete. (Id. ¶ 10.)

On January 21, 2010, the same day they were scheduled to file their opening brief, plaintiffs filed the instant motion to stay the briefing schedule and to supplement the administrative record. Plaintiffs made five specific requests relating to different categories of documents. On February 11, 2011, defendants filed their response. With respect to plaintiffs' specific requests, defendants (1) agreed to supplement the record with "most, if not all, of the 1072 Core Documents listed in Exhibit A that are not already included in its administrative record"; (2) identified that nine of the ten "Source Documents" were already in the federal administrative record and consented to substitute the tenth document for an article that was erroneously included; (3) agreed to supplement some of the general record documents, rejected others, and identified documents that were already included; (4) refused to supplement the administrative record with the index of a September 8, 2004 public hearing of the Lahontan Regional Water Quality Control Board on the grounds that it was not considered by the USFWS in arriving at its decisions; and (5) accepted and rejected documents referenced in comments as part of the administrative record. (Defs.' Response to Mot. To Stay, filed Feb. 11, 2011.) Defendant USFWS filed its revised administrative record on February 23, 2011.

ANALYSIS

In their reply, plaintiffs argue that four categories of documents remain to be supplemented to the administrative record:

(1) agency documents related to the historical range of the PCT; (2) technical references regarding PCT that are necessary to evaluate the impacts of the Project; (3) comments on prior evaluations of the Project and the evaluation of whether to issue a pollution discharge permit (the "permit") for the Project; and

(4) documents in the docket for the permit. Plaintiffs also assert that the briefing schedule must be modified based upon the filing of a ...


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