Opinion
NO. CIV. 2:12-02416 WBS KJN
02-26-2013
CONSERVATION CONGRESS, Plaintiff, v. UNITED STATES FORREST SERVICE and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants.
ORDER RE: MOTION TO LIMIT
REVIEW TO THE ADMINISTRATIVE
RECORD
Plaintiff Conservation Congress brings this action against the United States Forest Service ("USFS") and the United States Fish and Wildlife Service ("FWS") challenging defendants' actions in connection with three proposed vegetation clearance projects in the Mendocino National Forest. (Docket No. 1.) Presently before the court is defendants' motion to limit review of plaintiff's claims against USFS under the Endangered Species Act ("ESA") to the administrative record. (Docket No. 17.)
It would be premature to determine at this early stage of the proceedings that plaintiffs' claims against USFS under the ESA's citizen suit provision, 16 U.S.C. § 1540(g)(1), should be strictly limited to the administrative record. See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir. 2011); Conservation Congress v. Finley, Civ. No. 11-04752 SC (LB), 2012 U.S. Dist. LEXIS 61634, at *9-17 (N.D. Cal. May 2, 2012). Defendants' motion to limit review to the administrative record is therefore DENIED without prejudice to the right to object subsequently to the consideration of material outside of the record.
Plaintiff may pursue discovery regarding its ESA claims against USFS while plaintiff litigates its summary judgment motion on its claims under the National Environmental Policy Act ("NEPA").
IT IS SO ORDERED.
______________________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE