United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR A STAY PENDING APPEAL AND GRANTING DEFENDANT'S MOTION TO STRIKE
GARLAND E. BURRELL, Jr., Senior District Judge.
Plaintiff seeks to stay implementation of the Porcupine Vegetation and Road Management Project ("the Project") in the Shasta-Trinity National Forest ("the Forest"), pending the outcome of its appeal of an order granting Defendant's motion for summary judgment. Defendant opposes the motion and moves to strike evidence Plaintiff submitted in support of its stay motion.
I. MOTION TO STRIKE EVIDENCE SUBMITTED IN SUPPORT OF PLAINTIFF'S STAY MOTION
Defendant moves to strike "(1) paragraphs 7-9 of the Boggs Declaration, (2) the impermissible lay opinion regarding landscape fragmentation and impacts to owl habitat from paragraph 10 of the Boggs Declaration; (3) both exhibits to the Boggs Declaration; and (4) the Declaration of Tonja Chi in its entirety." (Def. MTS Reply 1:26-28, ECF No. 60.) Defendant argues the evidence should be stricken since "Plaintiff [impermissibly] seeks, under the guise of harm declarations, ' to attack the merits of the... Project decision, ... to offer untimely expert critiques of the merits of the... Project decision, and to submit inadmissible post-decision documents." (Def. MTS 1:19-25, ECF No. 52.)
Plaintiff responds that it "submitted both declarations and accompanying exhibits to demonstrate [that it is likely to suffer irreparable harm in the absence of an injunction, ]" and "only cited to these declarations in portions of [its motion] that addressed irreparable harm, " and therefore, "the declarations are properly before the Court." (Pl. Opp'n MTS 1:5-10, ECF No. 57.)
Defendant replies that it "does not dispute that extra-record declaration testimony may be used to demonstrate [the] irreparable harm needed to justify injunctive relief, " but "[t]he defect in the declarations submitted by Plaintiff... is that[, ] regardless of where they are cited in Plaintiff's briefing[, ]... [they] plainly attempt a new attack on the merits of the [Project] decision." (Def. MTS Reply 1:11-16, ECF No. 60.) Specifically, Defendant argues paragraphs 7-9 of the Boggs declaration contain Boggs' opinion that Defendant "failed to appropriately consider the threats posed by the barred owl and failed to comply with the U.S. Fish and Wildfire Service's 2011 Revised Recovery Plan for the northern spotted owl, " which is "not directed toward establishing harms, but instead [is] an attempt to impute the correctness of the agency's decision." (Def. MTS 3:9-14.) Defendant argues paragraph 10 of the Boggs declaration includes "an impermissible attempt to proffer expert testimony and new evidence in support of Plaintiff's... [underlying] claim, alleging [that] the owl habitat in the Project area is highly fragmented' and impair[s] connectivity, '" and that the two exhibits attached to the Boggs declaration, a google earth image of the Forest (Ex. A), and Defendant's March 31, 2014 Annual Progress Report (Ex. B), are offered to attack the merits of Defendant's decision to approve the Project. (Def. MTS 5:6-8; 5:9-11; 4:11-13.) Defendant also argues that through the Chi declaration, Plaintiff "asks this Court to revisit the merits of the conclusions reached by [Defendant] with regard to the impacts of the Project on the northern spotted owl, " since Chi "devotes the majority of her declaration to developing an argument that [Defendant] failed to take adequate account of the competitive pressures the barred owl places on the spotted owl." (Def. Mot. 5:25-26; 6:1-4.)
"A plaintiff seeking a [stay pending appeal] must establish that  [it] is likely to succeed on the merits,  that [it] is likely to suffer irreparable harm in the absence of preliminary relief,  that the balance of equities tips in [its] favor, and  that an injunction is in the public interest." Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008)) The Ninth Circuit has repeatedly considered declarations in its analysis of whether the plaintiff has demonstrated the likelihood that it will suffer irreparable harm without a stay. See e.g. Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (relying on declarations to show harm prong of the injunction analysis); City of Sausalito v. O'Neil, 386 F.3d 1186, 1198 (9th Cir. 2004) (same); Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833-34 (9th Cir. 2002) abrogated on other grounds by Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (same). However, declarations may only be considered to supplement the administrative record to show the movant's likelihood of the success on the merits in four circumstances:
(1) if necessary to determine "whether the agency has considered all relevant factors and has explained its decision, " (2) "when the agency has relied on documents not in the record, '  (3) "when supplementing the record is necessary to explain technical terms of complex subject matter, ".... [or]  "when plaintiffs make a showing of agency bad faith."
S.W. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (quoting Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703-04 (9th Cir. 1996)). Regardless, it is the movant's burden to show the declarations should be considered. Animal Def. Council v. Hodel, 840 F.2d 1432, 1437 (9th Cir. 1988) (denying movants argument that district court should have gone beyond the record since the movant "makes no showing that the district court needed to go outside the administrative record.").
Plaintiff does not argue that the relevant portions of the Boggs declaration and the Chi declaration are admissible to show its likelihood of success on the merits of its underlying claims and does not cite the declarations in the portion of its motion concerning likelihood of success on the merits. However, the contents of the declarations evince that they are an impermissible attempt to demonstrate Plaintiff is likely to succeed on the merits of its underlying claims since their content challenges Defendant's decision to approve the Project, which is the argument Plaintiff advances in its underlying claims.
Paragraphs 7-9 of the Boggs declaration offer opinions criticizing Defendant's approval of the Project for "fail[ing] to utilize diameter limits, " "claim[ing] there have not been barred owls identified in the Project area, " "rely[ing] on outdated methodology, " and "refus[ing] to utilize the best available scientific survey protocol;" Exhibit B attached to the Boggs Declaration, Defendant's March 31, 2014 Annual Progress Report, cited in paragraph 8, is offered to support this impermissible argument. (Boggs Decl. ¶¶ 7-9, ECF No. 43.) Therefore, Defendant's motion to strike paragraphs 7-9 of the Boggs declaration and Exhibit B attached to the declaration is granted.
Defendant has not identified which portion of paragraph 10 of the Boggs Declaration it seeks to strike beyond its reference to the phrases "highly fragmented, " and "impair[s] connectivity, " which appear in a sentence where Boggs declares, "This portion of designated critical habitat in the sale is the only remaining good habitat in the area as it is entirely surrounded by logging units that have resulted in a highly fragmented landscape impairing connectivity, as is evidenced in a google earth image." (Def. MTS 5:8; Boggs Decl. ¶ 10.) This sentence, and google earth image it references, attached as Exhibit A to the Boggs declaration, are part of Plaintiff's impermissible attempt to use extrinsic evidence to attack the merits of the Defendant's decision to approve the Project. Therefore, Defendant's motion is granted and the portion of paragraph 10 of the Boggs declaration on page 4 lines 1-4 as well as Exhibit A attached to the Boggs declaration are stricken.
Chi declares in her declaration that the "Project will result in harm to the [northern spotted owl]" and directly challenges Defendant's decision to approve the Project, stating "[i]n my professional opinion, the emphasis on potential threats to the [northern spotted owl] within the 2011 Revised Recovery Plan understates the true magnitude of threat by the barred owl on the [northern spotted owl] and overstates the threat by wildfire to [northern spotted ...