Cal. ex rel. Lockyer v. U.S. Dept. of Agriculture

• Decision Date: 02 December 2008
• Docket Number: Nos. C05-04038 EDL,Nos. C05-03508 EDL,s. C05-03508 EDL,s. C05-04038 EDL
• Citation: 710 F.Supp.2d 916
• Court: U.S. District Court — Northern District of California
• Parties: People of the State of CALIFORNIA ex rel. Bill LOCKYER, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE; Mike Johanns, Secretary of the Department of Agriculture, et al., Defendants. The Wilderness Society, California Wilderness Coalition, et al., Plaintiffs, v. United States Forest Service, an agency of the United States Department of Agriculture; Dale Bosworth, Chief of the United States Forest Service, et al., Defendants.

710 F.Supp.2d 916

People of the State of CALIFORNIA ex rel. Bill LOCKYER, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF AGRICULTURE; Mike Johanns, Secretary of the Department of Agriculture, et al., Defendants.

The Wilderness Society, California Wilderness Coalition, et al., Plaintiffs,

v.United States Forest Service, an agency of the United States Department of Agriculture; Dale Bosworth, Chief of the United States Forest Service, et al., Defendants.

Nos. C05-03508 EDL, C05-04038 EDL.

United States District Court, N.D. California.

Dec. 2, 2008.

Claudia Polsky, State Attorney General, Oakland, CA, Stephen R. Farris, Attorney General of New Mexico, Santa Fe, NM, Robert A. Nicholas, Wyoming Attorney General, Cheyenne, WY, Mary Sue Wilson, Sheila Deirdre Lynch, Washington State Attorney General's Office, Joan Marchioro, Ronald Leo Lavigne, Jr., Olympia, WA, Claudia Polsky, State Attorney General, Oakland, CA, for Plaintiffs.

Barclay Thomas Samford, United States Department of Justice, Denver, CO, Beverly Li, Jimmy Anthony Rodriguez, United States Department of Justice, Wildlife & Marine Resources Section, Rachel Anne Dougan, U.S. Department of Justice, Washington, DC, James A. Coda, United

States Attorney's Office, John Burritt McArthur, Hosie McArthur LLP, San Francisco, CA, Dennis L. Porter, Attorney at Law, Kenneth Brian Wilson, Perkins Coie LLP, Sacramento, CA, Paul Andrew Turcke, Moore Smith Buxton & Turcke, Boise, ID, Scott W. Horngren, Haglund Kelley Horngren Jones & Wilder LLP, Portland, OR, Candace F. West, Montana Attorney General, Helena, MT, Colleen J. Moore, State of Alaska Department of Law, Anchorage, AK, Gregory C. Loarie, Earth Justice, Oakland, CA, Kristen Lee Boyles, Earthjustice Legal Defense Fund, Seattle, WA, Thomas Scott Waldo, Earth Justice, Juneau, AK, Timothy J. Preso, Earth Justice, Bozeman, MT, for Defendants.

ORDER PARTIALLY STAYING INJUNCTIVE RELIEF IN THE INTERESTS OF COMITY PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 62(c)

ELIZABETH D. LAPORTE, United States Magistrate Judge.

Before the Court are Defendants' Motion for an Indicative Ruling on Rule 60(b) Motion to Modify Injunction or for Stay Pending Appeal and Plaintiffs' Motion to Stay Proceedings Relating to Defendants' Rule 60(b) Motion and Defendants' Motion for Stay Pending Appeal. The Court held a hearing on October 31, 2008, and the parties filed further briefing on November 14, 2008. For the reasons stated at the hearing and in this Order, Defendants' Motion for an Indicative Ruling is denied to the extent it seeks an indicative ruling under Crateo, Inc. v. Intermark, Inc., 536 F.2d 862, 869 (9th Cir.1976), but granted in part to the extent it seeks a stay of the injunction, and Plaintiffs' Motion for Stay is denied.

Background

In the October 11, 2006 Amended Order and Opinion on Cross-Motions for Summary Judgment, this Court set aside the State Petitions for Inventoried Roadless Area Management Rule ("State Petitions Rule") (70 Fed. Reg. 25,654 (May 13, 2005)), reinstated the Roadless Area Conservation Rule ("Roadless Rule") (66 Fed. Reg. 3,244 (Jan. 12, 2001)) and enjoined Defendants "from taking any further action contrary to the Roadless Rule without undertaking environmental analysis consistent with this opinion." See California v. United States Dep't of Agriculture, 459 F.Supp.2d 874, 919 (N.D.Cal.2006). That Order and Opinion is before the Ninth Circuit Court of Appeals, which heard oral argument on Defendants' appeal on October 20, 2008.

On August 12, 2008, the Wyoming district court issued an Order Granting Plaintiff's Motion for Declaratory and Injunctive Relief, holding that the Roadless Rule was promulgated in violation of National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370d, and the Wilderness Act, 16 U.S.C. §§ 1131-1136. See Wyoming v. United States Dep't of Agriculture, 570 F.Supp.2d 1309, 1355 (D.Wyo.2008). As a remedy, the Wyoming district court set aside and permanently enjoined the Roadless Rule throughout the nation, including in the Ninth Circuit. That order has been appealed to the Tenth Circuit Court of Appeals by the Intervenor-Defendants Wyoming Outdoor Council, The Wilderness Society, Sierra Club, Biodiversity Conservation Alliance, Pacific Rivers Council, Natural Resources Defense Council, National Audubon Society, and Defenders of Wildlife. The Tenth Circuit recently abated the appeal pending the Wyoming district court's ruling on the federal defendants' Motion for Reconsideration and Motion for Stay Pending Reconsideration.

On August 20, 2008, Defendants in this case filed a Motion for Indicative Ruling pursuant to Crateo seeking an order that,if the Ninth Circuit were to remand this case, the Court would grant a Federal Rule of Civil Procedure 60(b)(5) motion to modify this Court's injunction to remove the requirement that the Forest Service not take any action contrary to the Roadless Rule. Defendants argue that relief from the Court's injunction is necessary because they are faced with conflicting nationwide injunctions from two district courts: the earlier one issued by this Court on October 11, 2006, which reinstated the Roadless Rule after invalidating the State Petitions Rule that replaced it and prohibited the Forest Service from taking any actions contrary to that Rule, and the more recent one issued by the Wyoming district court on August 12, 2008, which permanently enjoined the Roadless Rule. Alternatively, pending resolution of the appeal of this Court's October 2006 decision in the Ninth Circuit, Defendants seek a stay of the injunction either in whole or in part, such as limiting the injunction to the Plaintiff States or exempting Wyoming. Simultaneously, in the Wyoming litigation, Defendants filed a Motion for Reconsideration asking that court to dissolve or stay its injunction in its entirety or limit it to the state of Wyoming through an amendment or partial stay, and Motion for Stay Pending Reconsideration, and Defendants/Intervenors Environmental Groups filed a Motion for Order Granting Rule 62(c) Motion for Suspension of Injunction Pending Appeal.

On September 3, 2008, in this case, Plaintiffs filed a Motion to Stay Proceedings on Defendants' Rule 60(b) Motion. Plaintiffs argue that the prudent course is for the Court to wait until the Motion for Reconsideration and the Motion for Order Granting Rule 62(c) Motion for Suspension of Injunction pending in the Wyoming district court, and if that relief is denied the appeal to the Tenth Circuit, are decided to determine if any conflict remains. On November 14, 2008, the parties filed further briefing in this Court regarding the proper procedural mechanism through which the Court should address the issue of the scope of its injunction.

Legal Standard

Defendants initially brought their motion to modify the injunction in this matter pursuant to Crateo, Inc. v. Intermark, Inc., 536 F.2d 862, 869 (9th Cir.1976) because this Court has no jurisdiction to entertain a Rule 60(b) motion while the matter is on appeal. See Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir.1988) (explaining that notice of appeal divests district court of jurisdiction over matters appealed in order to "avoid the confusion and waste of time that might flow from putting the same issues before two courts at the same time"). Under the Crateo procedure, a party may file a motion which asks the district court if it would entertain and grant a Rule 60(b) motion and, if it agrees, petition the Court of Appeals to remand the case for that purpose. See id. ("Because of the pending appeal, the District Court has no jurisdiction to enter an order under Rule 60(b). The most the District Court could do was to either indicate that it would 'entertain' such a motion or indicate that it would grant such a motion. If appellant had received such an indication, its next step would have been to apply to this Court for a remand."). At the October 31, 2008 hearing, the Court raised the question of whether the change in the scope of the injunction that it was contemplating would be better addressed through the Crateo procedure or pursuant to Federal Rule of Civil Procedure 62(c).

Under Rule 62(c), the Court may "suspend, modify, restore or grant an injunction"provided that the change would not materially alter the status of the case on appeal. See Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir.2001) ("When a notice of appeal is filed, jurisdiction over the matters being appealed normally transfers from the district court to the appeals court. An exception exists under the Federal Rules of Civil Procedure, however, that allows the district court to retain jurisdiction to "suspend, modify, restore, or grant an injunction during the pendency of the appeal ... as it considers proper for the security of the rights of the adverse party." " "The district court retains jurisdiction during the pendency of an appeal to act to preserve the status quo." Rule 62(c) " 'does not restore jurisdiction to the district court to adjudicate anew the merits of the case.' " The district court's exercise of jurisdiction should not "materially alter the status of the case on appeal.") (internal citations omitted); see also NRDC v. Southwest Marine, 242 F.3d 1163, 1166 (9th Cir.2001) ("This Rule grants the district court no broader power than it has always inherently possessed to preserve the status quo during the pendency of an appeal; it "does not restore jurisdiction to the district court to adjudicate anew the merits of the case." Thus, any action taken pursuant to Rule 62(c) "may not materially alter the status of the case on appeal.") (internal citations omitted). In their supplemental briefs filed after the hearing, both parties urge the Court to utilize Rule 62(c) rather than the Crateo procedure. Plaintiffs argue that the Crateo procedure is not only unnecessary, but could also disrupt the orderly resolution of the appeal of this matter. Plaintiffs advocate th...