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Case3:13-cv-02265-JST Document93 Filed11/07/13 Page1 of 3











UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NATIVE SONGBIRD CARE AND
CONSERVATION, et al.,

Plaintiffs,

v.


VICTOR MENDEZ, et al.,

Defendants.

Case No. 13-cv-02265-JST


ORDER DENYING MOTION FOR
LEAVE TO FILE A SUMMARY
JUDGMENT MOTION

Re: ECF No. 83





Plaintiffs seek to file a motion this month seeking summary judgment that, inter alia, the

Federal Defendants should be compelled, pursuant to 5 U.S.C. § 706(1), to prepare a

Supplemental Environmental Impact Statement (“SEIS”). Motion for Leave to File Summary

Judgment Motion, ECF No. 83. Federal Defendants have now represented to this Court that, by

the first week of December, they will have completed a reevaluation, pursuant to 23 C.F.R. §

771.130, determining whether or not a SEIS is necessary. Declaration of Lanh T. Phan ¶ 8, ECF

No. 91-1.

Obviously, it will moot the relief Plaintiffs seek in their proposed summary judgment

motion if the agencies determine that a SEIS is necessary. But even in the event that the agencies

determine no SEIS is required, Defendants are likely to make strong arguments that the issuance

of the reevaluation will significantly change the review the Court is called upon to undertake. In

Plaintiffs’ cited authority, NEPA’s reevaluation mandate “require[s] an agency to take a ‘hard

look’ at the new information to assess whether supplementation might be necessary.” Norton v. S.

Utah Wilderness Alliance, 542 U.S. 55, 73 (2004) (citing Marsh v. Or. Nat. Resources Council,

490 U.S. 360, 385 (1985)); see also N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545

F.3d 1147, 1155 (9th Cir. 2008) (quoting Friends of the Clearwater v. Dombeck, 222 F.3d 552,

558 (9th Cir.2000) (“When new information comes to light the agency must consider it, evaluate

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Case3:13-cv-02265-JST Document93 Filed11/07/13 Page2 of 3



it, and make a reasoned determination whether it is of such significance as to require [a

supplemental EIS].”)

Issuance of the reevaluation has the potential to have a sufficiently significant impact on

the issues the Court is called upon to address that it will be a poor use of judicial resources, and

potentially prejudicial to Defendants, to begin briefing the issue now. Plaintiffs cite no case in

which a court compelled preparation of a SEIS while an agency was still in the process of

conducting a regulatory review of whether one was necessary. (There might well be cases in

which unreasonable delay calls for such action, but Plaintiffs have clarified that they do not argue

pursuant to Section 706(1) that the reevaluation itself should be compelled as unreasonably

withheld.)

Plaintiffs are free to argue that a SEIS is compelled regardless of the contents of the

reevaluation, but they will not be prejudiced by doing so after the reevaluation issues. The same is

true of the claims Plaintiffs bring under their first and third theories. See Order at ECF No. 82, at

3:28-4:11. Therefore, the Court hereby DENIES the currently pending request to file the summary

judgment motion. Plaintiffs may file for summary judgment after December 6.

The Court notes that it does not agree with the Federal Defendants that the Court must

build time into the schedule to permit the amendment of the complaint and the filing of responsive

pleadings. It appears to the Court that paragraph 125 of the first amended complaint would

encompass a challenge to any final determination not to prepare a SEIS. Moreover, at least on

some authority, see Dombeck, 222 F.3d at 560, a challenge to a reevaluation is cognizable under

5 U.S.C. § 706(1), and in any case it appears that the Plaintiffs’ § 706(1) challenge is substantively

similar to the one under § 706(2). Defendants may file any responsive pleading concurrently with

their response to Plaintiffs’ motion for summary judgment, and will presumably make the same

arguments in opposition that they would otherwise have made in a motion to dismiss.

The Court will adopt a schedule at the November 13 Case Management Conference that

will permit the Court to adjudicate this dispute, and determine the appropriate remedy for any

violation, by the end of February. The parties shall come to the conference prepared with

scheduling proposals that accomplish this goal. In their proposal(s), the parties may propose the

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Case3:13-cv-02265-JST Document93 Filed11/07/13 Page3 of 3



modest shortening of the time periods required in the Federal and Local Rules, and may also

propose a hearing date and time that does not fall on the Court’s normal hearing day, if the date is

available on the Court’s schedule. If the parties cannot agree on a joint proposal, the parties can

submit competing proposals and the Court will choose the one proposal that appears most

reasonable. As always, any proposal made to the Court must be the subject of serious meet and

confer efforts.

The Court also expects the parties to come to the conference prepared to discuss proposals

for alternative dispute resolution, and will consider ordering the parties to conduct mediation or

other ADR of this dispute in the near future.

IT IS SO ORDERED.

Dated: November 7, 2013

______________________________________

JON S. TIGAR

United States District Judge



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