Opinion
No. CV-07-8164-PHX-DGC.
August 16, 2010
ORDER
Plaintiff Grand Canyon Trust has filed a motion asking this Court to certify Claims 4 and 5 of their second supplemental complaint pursuant to Federal Rule of Civil Procedure 54(b). Doc. 248-1. Defendants oppose the motion. Doc. 249. For reasons that follow, the Court will deny the motion. Doc. 248.
The request for oral argument is denied. The parties have fully briefed the issues and oral argument will not aid the Court's decision. See Fed.R.Civ.P. 78(b); Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
I. Background.
The Trust filed its initial complaint against Defendants in December of 2007 and asserted five claims: (1) Reclamation is violating the Endangered Species Act ("ESA") by operating the Glen Canyon Dam under modified low fluctuating flow ("MLFF"), a flow system that jeopardizes the humpback chub; (2) Reclamation is violating the ESA because MLFF destroys or adversely modifies the chub's critical habitat; (3) Reclamation is violating the ESA because MLFF "takes" the chub; (4) Reclamation is violating the ESA by failing to consult with FWS on the development of annual operating plans for the Dam; and (5) Reclamation is violating the National Environmental Policy Act ("NEPA") by failing to prepare environmental assessments or environmental impact statements for each of the Dam's annual operating plans. Doc. 1. In March of 2008, the Trust filed a supplemental complaint that asserted three new claims: (6) Reclamation's 2008 Environmental Assessment fails to comply with NEPA; (7) FWS's 2008 Biological Opinion violates the ESA; and (8) Reclamation's 2008 Experimental Plan violates the Grand Canyon Protection Act. Doc. 23.
On September 26, 2008, the Court granted summary judgment for Reclamation on Claims 4 and 5 and deferred ruling on Claims 1, 2, and 3 until Claims 6, 7, and 8 were fully briefed. Grand Canyon Trust v. U.S. Bureau of Reclamation, CV-07-8164-PCT-DGC, 2008 WL 4417227 (D. Ariz. Sept. 26, 2008) ( Trust I). On May 26, 2009, the Court granted summary judgment for Defendants on Claims 6 and 8 and for the Trust on Claim 7. Grand Canyon Trust v. U.S. Bureau of Reclamation, 623 F. Supp. 2d 1015 (D. Ariz. 2009) ( Trust II). On June 15, 2009, the Trust moved the Court for certification of Claims 4, 5, 6, and 8 pursuant to Rule 54(b). The Court denied the motion. See Doc. 177.
On January 27, 2010, the Trust filed a second supplemental complaint that added three additional claims: (9) the 2009 Supplemental Biological Opinion and the 2009 Incidental Take Statement ("ITS") violate the ESA; (10) the 2009 ITS violates NEPA; and (11) FWS's draft 2009 Recovery Goals, used in the 2009 Supplemental Biological Opinion's analysis of chub recovery, violate the ESA. Doc. 205 at 29-33. On June 29, 2010, the Court granted summary judgment to Defendants on Claims 1, 2, 10, and 11, granted in part and denied in part the Trust's motion for summary judgment on Claim 9, and took Claim 3 under advisement. Grand Canyon Trust v. U.S. Bureau of Reclamation, CV-07-8164-PCT-DGC, 2010 WL 2643537 (D. Ariz. Jun. 29, 2010) ( Trust III).
II. Legal Standard.
III. Analysis.
54Frank Briscoe Co. v. Morrison-Knudsen Co.776 F.2d 14141416Id.54Frank Briscoe 776 F.2d at 1416
The Court disagrees. All Claims in this litigation share a common factual nexus. Resolution of Claims 4 and 5 requires an understanding of: (1) how the Dam is operated and the differences between MLFF and SASF, see Trust I, 2008 WL 4417227 at *1-2; (2) ESA consultation requirements, see id. at *8-9; (3) the legal rules regarding agency action under the ESA, see id. at *9-10; (4) the law of the river, see id. at *11-14; and (5) NEPA and what constitutes major federal action under NEPA, see id. at *15-16. Other pending Claims implicate many of these factual and legal issues. See Trust II, 623 F. Supp. 2d at 1018-19 (factual history of how the river was operated and the differences between MLFF and SASF in relation to Claims 6, 7, and 8); Trust III, 2010 WL 2643537 at *1 (factual history of how the river was operated and the differences between MLFF and SASF is necessary for an understanding of Claims 1, 2, 3, 9, 10, and 11); Trust II, 623 F. Supp. 2d at 1020, 1031-32 (ESA consultation requirements in relation to Claims 6, 7, and 8); Trust II, 623 F. Supp. 2d at 1020 (agency action under the ESA in relation to Claims 6, 7, and 8); Trust II, 623 F. Supp. 2d at 1018 (law of the river in relation to Claim 6, 7, and 8); Trust II, 623 F. Supp. 2d at 1025-26 (NEPA and major federal action under NEPA in regards to Claim 6). Clearly, much of the legal and factual background necessary to consider Claims 4 and 5 is needed to consider the remaining Claims. As a result, the Court finds that certification pursuant to Rule 54(b) would only be proper here if "necessary to avoid a harsh and unjust result[.]'" Frank Briscoe Co., 776 F.2d at 1416.
The Trust does not argue that failure to certify Claims 4 and 5 would cause a harsh and unjust result. Rather, the Trust argues that such a showing is not necessary because Claims 4 and 5 are dissimilar from the other Claims. As discussed above, the Court does not agree. The Court again concludes that "the costs of multiplying the number of proceedings and of overcrowding the appellate docket are not outbalanced by a pressing need of Plaintiff for an early and separate judgment as to some claims." Doc. 177 (citing Frank Briscoe Co., 776 F.2d at 1416).
"Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims." Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8 (1980). The similarity of Claims in this case weighs "heavily against entry of judgment under the rule[.]" Frank Briscoe Co., 776 F.2d at 1416. IT IS ORDERED that the Trust's motion for Rule 54(b) certification (Doc. 248) is denied.