Public Lands for the People, Inc. et al v. United States Department of Agriculture

REPLY

E.D. Cal.January 8, 2010

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2:09-cv-01750 Reply Memo Re: Defs. 12(e) Motion Page 1 IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division Jason A. Hill, D.C. Bar No. 477543 Trial Attorney U.S. Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, DC 20044-0663 Phone: (202) 514-1024 Fax: (202) 305-0506 jason.hill2@usdoj.gov Thomas K. Snodgrass, Colorado Bar. No. 31329 Trial Attorney 1961 Stout Street, 8th Floor Denver, CO 80294 Phone: 303/844-1368 Fax: 303/844-1350 thomas.snodgrass@usdoj.gov Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA PUBLIC LANDS FOR THE PEOPLE, INC., et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. ____________________________________ Case No. 2:09-cv-01750-LKK-JFM Related Cases: Civ. No. 2:09-cv-2523-LKK-JFM Civ. No. 2:02-325-LKK-JFM FEDERAL DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR MORE DEFINITE STATEMENT OF CLAIM I OF PLAINTIFFS’ COMPLAINT Date: February 22, 2009 Time: 10:00 a.m. Judge: Honorable Lawrence K. Karlton Place: Courtroom 4 Case 2:09-cv-01750-LKK-JFM Document 35 Filed 01/08/10 Page 1 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1/Defendants identify three possible allegations relating to (1) the analysis of alternatives, (2) the analysis of cumulative impacts, and (3) the failure to produce an SEIS prior to completing the FEIS. Id. at 6. Plaintiffs have only chosen to focus their response on the third, and have included a fourth possible allegation not raised in the Complaint, relating to site-specific analysis. Pl. Opp. Memo. 2:09-cv-01750 Reply Memo Re: Defs. 12(e) Motion Page 2 INTRODUCTION Defendants bring a motion to require Plaintiffs that provide a more definite statement, pursuant to Fed. R. Civ. P. 12(e), with regard to Claim I of Plaintiffs’ Complaint, entitled “Violation of the National Environmental Policy Act” (hereinafter “Defendants’ 12(e) Motion” and “Def. Memo. in Support”). Defendants assert that the length, as well as the ambiguous and confusing presentation of the information in Claim I, is contrary to the direction in Fed. R. Civ. P. 8 for a short and plain statement of the claims, and subject to relief pursuant to Fed. R. Civ. P. 12(e). Plaintiffs’ Memorandum in Opposition to Federal Defendants’ Motion for More Definite Statement of Claim I of Plaintiffs’ Complaint (hereinafter “Plaintiffs’ Opposition Memo” or “Pl. Opp. Memo.”) does little to relieve the ambiguity and confusion found in Plaintiffs’ Complaint, and in many instances increases the confusion. The Court should grant Defendants’ motion, and order Plaintiffs to amend their Complaint to remedy these deficiencies. A summary of Defendants’ memorandum in support of their 12(e) Motion would be helpful since Plaintiffs’ Opposition Memo fails to address many of the reasons Defendants offered. Claim I is the first of twenty specific claims asserted in a voluminous, and often confusing, 71 page Complaint filed by Plaintiffs. Claim I fails to meet the requirements of Rule 8 that “[a] pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief,” and that “each averment of a pleading shall be simple, concise, and direct.” Def. Memo. in Support at 4- 5. This Court should require that Plaintiffs provide a more definitive statement, as contemplated under Fed. R. Civ. P. 12(e). Westland Oil Co. v. Firestone Tire & Rubber Co., 3 F.R.D. 55, 56 (D.N.D. 1943). Id. at 5. As drafted, Claim I fails to provide the legal basis for any recognizable claim under the National Environmental Policy Act (“NEPA”). Id. It is unclear whether Claim I alleges a single unlawful act or multiple unlawful acts.1/ Id. at 6. Defendants reference the confusion created by the inclusion of several paragraphs Case 2:09-cv-01750-LKK-JFM Document 35 Filed 01/08/10 Page 2 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at 4-5, and 7. 2/Defendants offered ¶83 of the Complaint as a specific example. Plaintiffs addressed only this paragraph in their response, but only in the most general and conclusory manner. Pl. Opp. Memo. at 7. 3/See Complaint at ¶101, which solely alleges a NEPA violation in accordance with the standard of review under 5 U.S.C. § 706(2). 2:09-cv-01750 Reply Memo Re: Defs. 12(e) Motion Page 3 in Claim I that make little or no reference to NEPA, id. at 6-7, and which Plaintiffs do not even address in response. Defendants identify further confusion caused by Plaintiffs failure to relate legal concepts or provisions to any factual allegation, and the failure to relate facts or law to any alleged unlawful act or specific NEPA violation, id. at 7, to which Plaintiffs again fail to respond. Finally, Defendants complain of instances where Plaintiffs begin a paragraph in Claim I referring to a NEPA provision or regulation, but conclude the same paragraph with an alleged violation unrelated to NEPA.2/ Defendants conclude their argument by noting that discovery would be unavailable to remedy the Complaint’s deficiencies, because Claim I is a administrative record review case. Id. at 8-9. The confusing presentation in Plaintiffs’ Opposition Memo highlights why Defendants’ 12(e) Motion should be granted. Plaintiffs begin their discussion by stating that the Complaint challenges the “Travel Management Plan” for the Eldorado National Forest (“ENF”), but proceed to discuss closures in other national forests. Plaintiffs then include a lengthy discussion on plans of operation, which were not even discussed in Defendants’ 12(e) Motion. Next, Plaintiffs discuss an alleged meeting with Defendants that would post-date the Record of Decision (“ROD”) adopting the ENF Public Wheeled Motorized Travel Management Final Environmental Impact Statement (hereinafter “the Decision” and the “FEIS”), and be irrelevant under a NEPA challenge pursuant to § 706(2) of the Administrative Procedure Act ("APA").3/ Plaintiffs further allege a failure to conduct site- specific analysis in an FEIS, but no such allegation was included in the Complaint under the section dealing with Claim I. Finally, Plaintiffs’ Opposition Memo misstates the role of discovery in an administrative record review case under the APA, and provides further confusion with allegations concerning preparation of a Supplemental Environmental Impact Statement (“SEIS”). Accordingly, Plaintiffs should be required to amend their pleading to specify whether they Case 2:09-cv-01750-LKK-JFM Document 35 Filed 01/08/10 Page 3 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2:09-cv-01750 Reply Memo Re: Defs. 12(e) Motion Page 4 intend to limit their NEPA and APA challenge under Claim I to the Decision, and to eliminate confusing and extraneous allegations regarding other decisions or potential decisions occurring outside the Decision area, or post-Decision actions. Further, Plaintiffs should be required to include only those facts relevant to specific, alleged violations of NEPA, and to relate those facts to any alleged violations in a logical manner. If Plaintiffs intend to include other NEPA challenges, Plaintiffs should be required to provide sufficient information so that the legal basis for any such challenge may be readily discerned by Defendants. ANALYSIS A. Plaintiffs’ Pleading Defects Cannot Be Cured Through Discovery As previously noted, while courts may deny a motion for a more definite statement where deficiencies may be remedied through discovery, such a situation does not present itself in this case. Def. Memo. in Support at 8. Since Claim I attempts to state a claim under NEPA, judicial review of Claim I would be subject to the judicial review provisions under the APA, which means discovery is not available to remedy Plaintiffs’ pleading defects. Plaintiffs begin their response with cases that support the general proposition that courts disfavor motions for a more definite statement. However, each of these cases can be summarily distinguished as involving claims that typically allow for discovery. The liberal nature of federal pleadings standards leading to the general disfavor noted in these cases is based in part upon the availability of discovery in those cases, as evidenced by the very cases cited by Plaintiffs. See Beery v. Hitachi Home Elecs. (America), Inc., 157 F.R.D. 477, 480 (C.D. Cal. 1993) (“If the detail sought by a motion for more definite statement is obtainable through discovery, the motion should be denied.”) (emphasis added); Gay-Straight Alliance Network v. Visalia Unified Sch. Dist., 262 F.Supp.2d 1088, 1099 (E.D. Cal. 2001) (“The Court should also deny the motion if the detail sought by a motion for more definite statement is obtainable through discovery.”) (emphasis added). Plaintiffs, however, may not rely upon discovery to cure their pleading defects in Claim I, which is an administrative review claim under the APA. Defendants previously addressed this issue and supported their position. Def. Memo. in Support at 8-9. Plaintiffs’ attempt to classify Defendants’ position as “novel” and their apparent willingness to submit to discovery, does nothing Case 2:09-cv-01750-LKK-JFM Document 35 Filed 01/08/10 Page 4 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4/ A court's review of claims brought under both APA §§ 706(1) and 706(2) is to be based upon an administrative record compiled by the agency and include materials in existence at the time of the challenged action, although some supplementation may be appropriate in failure to act cases. See, e.g., Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir.2005); Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir. 1998) ("[J]udicial review of an agency decision not to issue an EIS is generally limited to review of the administrative record at the time the decision was made. See Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir.1986)."); compare San Francisco Baykeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002) (recognizing that agency may supplement record in cases premised upon alleged agency inaction to incorporate documents further explaining agency position); see also Fed. R. Civ. P. 26(a)(1)(E)(i), 26(f) (exempting record review cases from initial disclosure, mandatory party conference, and discovery plan requirements). 5/Plaintiffs’ glancing attempt to distinguish Fla. Power as “dealing with augmenting the administrative record, not with discovery on Plaintiff” completely fails to recognize that if Claim I proceeds, it would be decided upon the administrative record for whatever unlawful action Plaintiffs ultimately specify. Fla. Power is directly on point because it deals the factfinding capacity of a district court when reviewing agency decisionmaking. Id. at 744. (“The factfinding capacity of the district court is thus typically unnecessary to judicial review of agency decisionmaking”). 2:09-cv-01750 Reply Memo Re: Defs. 12(e) Motion Page 5 to change the fact that, if Plaintiffs can eventually satisfy their requirements under Rule 8(a) for their claim under NEPA, Claim I will proceed pursuant to the record review standard under the APA, a type of case not generally subject to discovery. In determining whether violations actionable under the APA have occurred, § 706 states that “the court shall review the whole record or those parts of it cited by a party.” It is well-established that review of alleged unlawful actions under APA § 706(2), such as that pled in Claim I of Plaintiffs’ Complaint, as well as failure to act claims pled under § 706(1), is confined to the administrative record developed by the agency.4/ Accordingly, discovery is not generally available since judicial review is limited to the record before the agency, and should be prohibited for Claim I. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)5/; Animal Def. Council v. Hodel, 840 F.2d 1432, 1436-38 (9th Cir.1988), amended by 867 F.2d 1244 (9th Cir.1989) (In general, “judicial review of agency action is limited to review of the administrative record.”). Finally, even in cases in which discovery is generally available, discovery provides no remedy for a deficiently pled complaint that does not meet the requirements of Rule 8(a). See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”). Accordingly, Plaintiffs may not cure the pleading defects in Claim I of their Complaint with discovery, and should be required Case 2:09-cv-01750-LKK-JFM Document 35 Filed 01/08/10 Page 5 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6/Defendants assume Plaintiffs are referring to the Record of Decision (“ROD”) based on the ENF Public Wheeled Motorized Travel Management Final Environmental Impact Statement. 2:09-cv-01750 Reply Memo Re: Defs. 12(e) Motion Page 6 to plead their case sufficiently before being allowed to proceed. B. Plaintiffs’ Extensive References To Areas Outside The ENF Are Unrelated, If Plaintiffs Seek To The Challenge Of A Decision That Only Pertains To The ENF While Plaintiffs state that the Complaint challenges the “Travel Management Plan”6/ for the ENF, Pl. Opp. Memo. at 2, the scope of Claim I is far from clear upon reading either the Complaint or Plaintiffs’ Opposition Memo because Plaintiffs make repeated allegations regarding “National Forests in the Western United States” and “other National Forests.” Pl. Opp. Memo. at 2; see also Id. at 4 (“National Forests throughout the Western United States” used twice); Complaint at ¶83, ¶87, ¶88, and ¶90 - 96, and Def. Memo. in Support. at n.5. The Complaint further compounds this problem by specifically naming other national forests such as the Tahoe National Forest, Inyo National Forest, and Plumas National Forest. Complaint at ¶15, ¶35, ¶61; id. at ¶89 (naming these same three national forests along with “other National Forests in the Western United States”). The discussion in section II.A. above highlights the importance of the administrative record for both parties in preparing their respective cases before this Court on Claim I. It is imperative that Plaintiffs clearly identify the final agency action they intend to challenge because it will form the basis for determining the contents of the administrative record, and/or possibly provide the basis for additional threshold motions to the extent Plaintiffs seek to plead any non-justiciable or otherwise deficient claims under Claim I. Plaintiffs’ repeated allegations of NEPA violations outside the ENF untethered to any specific claims are confusing, and Plaintiffs should be required to specify the decision or decisions they seek to challenge under Claim I and eliminate all confusing and extraneous allegations related to areas that do not pertain to their intended challenge. C. Plaintiffs’ Allegations Regarding The Preparation Of A SEIS Demonstrate The Need For A More Definite Statement. The basis for Defendants’ alleged obligation to prepare an SEIS is not apparent from the Complaint. See Complaint at ¶88 and ¶90. It is impossible to determine any significant, new circumstances or information relevant to environmental concerns that bear on a specific proposed agency action. 40 C.F.R. § 1502.9(c); Forest Service Handbook, 1909.15, Section 18. To the extent Case 2:09-cv-01750-LKK-JFM Document 35 Filed 01/08/10 Page 6 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7/This terminology injects further confusion, as it has absolutely no meaning or significance to Defendants. 2:09-cv-01750 Reply Memo Re: Defs. 12(e) Motion Page 7 Plaintiffs argue that the “occurrence, magnitude, and impact” of unspecified “closures in National Forests throughout the Western United States” constitute “significant new circumstances,” id. at ¶90, it is uncertain why these would be considered new circumstances arising after the time the Decision was made, or why they are significant enough to require additional analysis beyond that which was already included in the FEIS. Regarding Plaintiffs’ allegation that their comments “would provide” relevant information, id., it is not clear whether these comments were already submitted to the agency pursuant to the NEPA process, or whether Plaintiffs intend to offer additional comments as part of this case. In addition, Plaintiffs have not even alleged these comments would provide any significant or new information. Without such clarification, it is impossible to determine when Plaintiffs believe the alleged SEIS should have been prepared, and upon what basis. The lack of specificity in the Complaint led Defendants to the conclusion that Plaintiffs were alleging Defendants should have prepared an SEIS “relating to mining, prospecting, incidental, and associated mining activities, or recreational activities, including off-roading activities, in the ENF, and how they relate to the National Forests throughout the Western United States,” id. at ¶ 88, prior to signing the ROD. Def. Memo. in Support at 6. In response, Plaintiffs would now rewrite their Complaint to allege that their SEIS allegations are based upon a post-decision meeting with Defendants where objections to “salami tickets”7/ were allegedly raised, and where additional information was allegedly provided to Defendants that would require the preparation of an SEIS. Pl. Opp. Memo. at 4 and 7. Reaching this conclusion, however, requires exactly the cobbling together of Plaintiffs’ cryptic allegations that would prejudice Defendants in having to respond to Plaintiffs’ Complaint as currently drafted. Defendants would have to relate paragraphs 58 and 59 of the Complaint to paragraphs 88 and 89, while disregarding everything in between, ignoring that Plaintiffs’ NEPA claim is based solely on a violation of 5 U.S.C. § 706(2), and making several other assumptions not found in the Complaint itself. It is unfair and unreasonable to impose such a burden on Defendants or the Court. Plaintiffs should be required to clearly set out one or more claims for relief under NEPA and the legal basis for those claims. Case 2:09-cv-01750-LKK-JFM Document 35 Filed 01/08/10 Page 7 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8/In an attempt to mirror the language of Bryson, Plaintiffs selectively quote from Def. Memo. in Support to provide a misleading impression that “Defendants assert that the Complaint ‘Lacks sufficient detail as to salient legal theories . . .’” Pl. Opp. Memo. at 7. Defendants actually assert that the Complaint “lacks sufficient detail or guidance as to salient legal theories or any recognizable claims under NEPA.” Def. Memo. in Support at 6 (emphasis added). 2:09-cv-01750 Reply Memo Re: Defs. 12(e) Motion Page 8 D. Plaintiffs’ Reliance On Bryson Is Misplaced. Given the importance of the administrative record to Claim I, it is imperative that Plaintiffs be required to specify the particular allegedly unlawful action or alleged failure to act they seek to challenge, as the administrative record for each would not necessarily be identical. The more definite statement requested should require that Plaintiffs provide a clear legal basis for any alleged violations of NEPA. Plaintiffs rely upon Bryson v. Bank of New York, 584 F.Supp.1306, 1319 (S.D.N.Y. 1984), for the proposition that a motion for a more definite statement “may not be used for the purpose of ascertaining Plaintiffs’ legal theories.” Pl. Opp. Memo. at 6.8/ A closer reading of Bryson, however, reveals that the court in fact stated: “A Rule 12(e) Motion should not be used simply to ascertain a plaintiff’s legal theories.” Id. (emphasis added) (citing Hylte Bruks Aktiebolag v. Babcock & Wilcox Co., 45 F.R.D. 357, 360 (S.D.N.Y. 1968) (“The attack by the defendant on the breach of warranty claims set forth in the amended complaint is basically a demand for identification of the particular legal theory on which the plaintiffs rely. This, by itself, is not sufficient to support a motion under Rule 12(e).”) (emphasis added). In addition, the Bryson court actually found that to the extent the Rule 12(e) motion in that case had not been mooted by the submission of additional information in opposition by the plaintiffs, the remaining claim was “so vague” that the court required the plaintiffs to submit a statement detailing the facts upon which that claim was based. Id. The language Plaintiffs rely upon from Bryson was intended to provide some guidance as to the detail those plaintiffs had to provide in the statement that court ordered them to make, not for the proposition proffered by Plaintiffs. Moreover, the cases cited above imply that a Rule 12(e) motion may be used to ascertain a plaintiff’s legal theories, as long as that is not the sole basis for the motion. In the instant case, some knowledge of the legal basis of Plaintiffs’ claims is necessary to aid in properly preparing and lodging the administrative record(s), and determining whether any Case 2:09-cv-01750-LKK-JFM Document 35 Filed 01/08/10 Page 8 of 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2:09-cv-01750 Reply Memo Re: Defs. 12(e) Motion Page 9 portion of Claim I is subject to any threshold motions. Plaintiffs should be required to plead enough detail to achieve that purpose. CONCLUSION Plaintiffs’ allegations of NEPA violations found in Claim I are vague and confusing. Deciphering and responding to such a claim imposes an unfair and unreasonable burden on Defendants and this Court. Accordingly, this Court should grant Defendants’ motion and require Plaintiffs to file an amended complaint containing a more definite statement of their allegations related to NEPA. Respectfully submitted this 8th day of January, 2010. IGNACIA S. MORENO Assistant Attorney General Environment and Natural Resources Division /s/ Jason A. Hill Jason A. Hill Trial Attorney /s/ Thomas K. Snodgrass Thomas K. Snodgrass Trial Attorney OF COUNSEL Rose Miksovsky U.S. Department of Agriculture Office of the General Counsel 33 New Montgomery St., 17th Floor San Francisco, CA 94105 Ellen R. Hornstein U.S. Department of Agriculture Office of the General Counsel Natural Resources Division 1400 Independence Avenue, S.W. Washington, D.C. 20250-1412 Case 2:09-cv-01750-LKK-JFM Document 35 Filed 01/08/10 Page 9 of 9