Opinion
NO. CIV. S-09-2523 LKK/JFM.
April 19, 2011
ORDER
On Monday, April 18, 2011, the court heard oral argument on the parties' cross motions for summary judgment. One claim at issue arises under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. The Forest Service contends that it complied with the ESA's consultation requirement by adhering to a 2006 programmatic consultation, which describes various design criteria for routes. At issue in this suit is criterion #2, which provides in part "In suitable California red-legged frog habitat, routes avoid Riparian Reserve and Riparian Conservation Areas except where necessary to cross streams." See, e.g., Administrative Record (AR) 12,871.
At oral argument, plaintiffs argued that the Forest Service's application of this criterion was arbitrary and capricious in part because the Forest Service excluded ephemeral streams from its analysis, despite the asserted fact that the Sierra National Forest Plan Amendments define Resource Conservation Areas to include areas near ephemeral streams.
Having reviewed the papers, the court concludes that plaintiffs outlined this argument in their opening brief. See Plaintiffs' Opening Brief (Dkt. No. 52-1) at 25 (citing AR 10,979), 29 (citing AR 2,534, 2,681). This argument therefore has not been waived by litigation conduct. The court nonetheless agrees with defendants' contention that this argument was incompletely presented, such that defendants cannot be faulted for failing to respond to it. Accordingly, the court requests supplemental briefing on this issue.
The court expresses no opinion in this order as to whether plaintiffs administratively exhausted this argument or whether the exhaustion requirement contained in 7 U.S.C. § 6912(e) applies to this or any other ESA claim.
Plaintiffs MAY file a brief on this aspect of their ESA claim. Said brief may not exceed ten (10) pages, and may be filed no later than 5 p.m. on Monday, April 25.
Defendants MAY file an opposition brief addressing the same issues. Said brief may not exceed ten (10) pages, and may be filed no later than 5 p.m. on Monday, May 2.
Plaintiffs MAY file a reply brief, not to exceed five (5) pages, no later than 9 a.m. on Thursday, May 5.
IT IS SO ORDERED.