Or. Natural Desert Ass'n v. Sabo

• Decision Date: 30 March 2012
• Docket Number: No. 1:10–cv–1212–CL.,1:10–cv–1212–CL.
• Citation: 854 F.Supp.2d 889
• Parties: OREGON NATURAL DESERT ASSOCIATION; and Klamath Siskiyou Wildlands Center, Plaintiffs, v. David SABO, District Ranger, Chemult Ranger District, Fremont–Winema National Forests; and U.S. Forest Service, Defendants, and Iverson Management Limited Partnership, Intervenors.
• Court: U.S. District Court — District of Oregon

854 F.Supp.2d 889

OREGON NATURAL DESERT ASSOCIATION; and Klamath Siskiyou Wildlands Center, Plaintiffs,

v.David SABO, District Ranger, Chemult Ranger District, Fremont–Winema National Forests; and U.S. Forest Service, Defendants,andIverson Management Limited Partnership, Intervenors.

No. 1:10–cv–1212–CL.

United States District Court,

D. Oregon.

March 30, 2012.

David H. Becker, Law Office of David H. Becker, LLC, Lauren M. Rule, Advocates for the West, Peter MacNamara Lacy, Oregon Natural Desert Association, Portland, OR, for Plaintiffs.

Sean E. Martin, U.S. Attorney's Office, Portland, OR, for Defendants.

Elizabeth E. Howard, Dunn Carney Allen Higgins & Tongue LLP, Portland, OR, for Intervenors.

ORDER

PANNER, District Judge:

Magistrate Judge Mark D. Clarke filed a Report and Recommendation (# 37) and an Amended Report and Recommendation Regarding Remedial Relief (# 70), and the matter is now before me. See28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b). Defendants filed objections and I have reviewed the file of this case de novo.28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981). I find no error and adopt the reports (# 37 & # 70).

IT IS SO ORDERED.

ORDER AND AMENDED REPORT AND RECOMMENDATION REGARDING REMEDIAL RELIEF

CLARKE, United States Magistrate Judge.

On July 12, 2011, this Court entered an Order and Report and Recommendation recommending that plaintiffs' motions for summary judgment as to their NFMA claims regarding the Allotment be granted and that their NEPA claims as to the Allotment and as to Round Meadow be granted (# 37). Plaintiffs have filed a motion to amend Order and Report and Recommendation to add remedial relief (# 43). Iverson Management Limited Partnership (Iverson LP) then sought to intervene in the case, which the Court allowed (# 50). Plaintiffs have also filed a notice of supplemental evidence (# 61), which defendants and defendant-intervenor object to and defendant-intervenor move to strike (# 63). The Court heard oral argument on these issues on August 25, 2011. For the reasons that follow, plaintiffs' motion to add remedial relief should be denied; the Court amends its July 12 Order and Report and Recommendation to explain its ruling.

DISCUSSION

Defendants' Request to Correct July 12, 2011, Order and Report and Recommendation

As an initial matter, the Court addresses defendants' requests in their response to correct the Court's Order and Report and Recommendation (R & R).

The Court's July 12, 2011, R & R is corrected as follows:

on page 34, in the third line of the first paragraph, “1990” and “twenty” should be deleted and “1995” and “fifteen” should be substituted; the full sentence should read; “The current AMP was completed in 1995, over fifteen years ago.”

The Court declines to correct the R & R as it relates to the finding that the 2008 AOI was arbitrary and capricious. Making the change requested by defendants does not change the Court's legal analysis.

Defendants' and Defendant–Intervenor's Objections to Plaintiffs' Supplemental Evidence and Defendant–Intervenor's Motion to Strike

After defendants and defendant-intervenor filed their responses to plaintiffs' motion, plaintiffs filed certain supplemental evidence in the form of some August 2011 emails and letters addressed to defendant Sabo and Barbara Machado by Jayne Goodwin and some photographs allegedly taken by Ms. Goodwin. The Court sustains defendants' and defendant-intervenor's objections to this evidence and plaintiffs' supplemental evidence will not be considered by the Court. Defendant-intervenor's motion to strike is granted.

Plaintiffs' Motion to Amend R & R to Add Remedial Relief

Relevant Procedural History and Relief Sought

In March 2011, the permitee, Iverson LP, requested to be allowed to graze exclosures presently in the Allotment, including the Round Meadow exclosure. District Ranger Sabo decided to consider effects analysis and draft BEs for sensitive plant, animal, and aquatic species from Forest Service specialists in wildlife, botany, soils, range, and watershed/fisheries before making his decision on the request. (# 59 Sabo Decl.)

The 2011 AOI was issued on May 6, 2011, without a decision made as to the permitee's request to graze any of the exclosures. The AOI authorizes grazing for the Allotment on the Silver Lake and Chemult Ranger Districts.¹ The AOI authorized 275 cow-calf pairs and 104 cow/calf pairs private on the Chemult Pasture, a total of 379 cow/calf pairs, beginning August 1, and moved from the pasture beginning September 15, with 90% off Forest by September 30. The AOI states:

The Jack Creek Riparian Pasture on the Chemult Pasture is still in a “no grazing” status until completion of a new Allotment Management Plan. It is your responsibility to maintain the Jack Creek Riparian fence in a manner that keeps cattle from accessing the riparian pasture and to monitor the area regularly to minimize/eliminate livestock impacts in this area. Cattle observed in the Jack Creek Riparian Pasture will be reported to you in a timely manner and it is my expectation that you will respond quickly to these reports. Any livestock in the Jack Creek Riparian Pasture will be moved out as soon as possible but no longer than 3 days of you receiving the report. If livestock accessing the Jack Creek Riparian Pasture becomes a chronic problem over the summer or you do not respond in a timely manner, I will consider permit action to rectify the situation.

In the “Herding” section, it is stated that, “Keep cattle moving and away from riparian zones as often as possible.” The “Maintenance Responsibilities” section states: “Maintenance of structures needed to control livestock is an issue within the Antelope/Chemult allotment. We are assessing the condition of all structures on the allotment in preparation for a new Allotment Management Plan. Please keep notes of structures that no longer function or cannot be maintained for inclusion in the new AMP.” (Defs. Response Ex. A.)

After receiving the analysis and draft BEs in early May 2011, and discussion with the specialists, District Ranger Sabo decided not to authorize grazing on the existing exclosures, but he would consider grazing within the Round Meadow exclosure. (# 59 Sabo Decl.)

At the May 24, 2011, oral argument on the parties' cross-motions for summary judgment, defendants made known that the 2011 AOI had been issued in May, authorizing grazing to begin on August 1.

The Court issued its R & R on July 12, 2011.

As a result of the Court's R & R and discussion with the permitee's representative, Keith Little, District Ranger Sabo decided not to proceed with further consideration of grazing in Round Meadow in the 2011 season. (# 59 Sabo Decl.)

The Forest Service completed three BEs for sensitive plant, animal, and aquatic species prior to the August 1 grazing season: an Aquatic Species BE dated July 29, 2011; a Terrestrial Wildlife BE dated July 29, 2011; and a Botanical Species and Terrestrial Mollusks BE and Special Report dated July 30, 2011. (# 59 Sabo Decl. Ex. B; Markus Decl. Ex. A; Malaby Decl. Ex. A.)

In their motion to add remedial relief filed on July 28, 2011, plaintiffs seek to add the following relief relating to the Allotment:

• prohibition of grazing in Round Meadow and all exclosures until completion of NEPA analysis

• exclusion of cattle from sensitive species habitat until completion of biological evaluations for sensitive species and NEPA analysis; sensitive species habitat needing protection to be identified by the Chemult District wildlife biologist and zone botanist, minimally to include all known sensitive species sites, and requiring

• installation of temporary electric fencing around ten habitat sites identified in the motion

• permitee to have riders with the cattle at all times, actively herding cattle away from identified sensitive species habitat, including all exclosures and temporary fenced areas • weekly monitoring during grazing season for presence of cattle in identified sensitive species habitat, with removal of cattle if repeated trespass occurs; biweekly reports to plaintiffs and mid-season report to the Court

• completion of biological evaluations for all sensitive species and NEPA analysis by March 30, 2013; completion of Oregon spotted frog site management plan by December 31, 2011, and all scoped frog habitat restoration projects by November 30, 2012; completion of a site management plan for plant and mollusk sensitive species and restoration of fen habitat by August 31, 2012

(Pls. Brief at 13–15 & Pls. “[Proposed] Amended Order and Report and Recommendation.”)

Plaintiffs did not move to amend their complaint to challenge the 2011 AOL Plaintiffs did not move for any type of injunctive relief at any stage of the proceeding until they filed the instant motion. In their complaint, plaintiff's did not include any claim for delay in completing the revised AMP. ( See R & R at 41.)

Analysis

Plaintiffs move to amend the Court's R & R to add remedial relief, contending that the relief is necessary to remedy the multiple legal violations of NFMA and NEPA which the Court found in its July 12 decision, and to remedy past harms and prevent future irreparable harms to unique fen communities and sensitive plant and animal species found on the Allotment. In moving to amend, plaintiffs rely upon Federal Rules of Civil Procedure 60(b), 72(b), and 65, and the Court's R & R.

The rules cited by plaintiff are not really on point. As pointed out by defendants, Rule 60(b) relates to grounds for relief from a final judgment, order, or proceeding, and Rule 65 relates to issuing preliminary injunctions and temporary restraining orders. Rule 72(b) relates to magistrate judges and dispositive motions. However, the court has broad authority to fashion an equitable remedy. United States v. Odessa Union Warehouse Co-op., 833 F.2d 172, 175 (9th Cir.1987) (“The essence of equity...