Free Memorandum in Opposition - District Court of California - California

Case 3:08-cv-01488-SI

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RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division JEAN E. WILLIAMS, Section Chief LAWSON E. FITE, Trial Attorney (Oregon Bar No. 055573) U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Telephone: (202) 305-0217 Facsimile: (202) 305-0275 Email: [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) )

MAN AGAINST EXTINCTION, a/k/a RICHARD MAX STRAHAN, Plaintiff, v. H. DALE HALL, et al., Defendants.

No. C 08-01488 SI FEDERAL DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO FED. R. CIV. P. 59(e)

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INTRODUCTION Because the Plaintiff in this action had failed to provide the requisite 60-day notice, this

Court granted the Federal Defendants' Motion to Dismiss on August 13, 2008, and entered judgment against the Plaintiff. Doc. Nos. 23, 25. Plaintiff now moves this Court to alter or amend its judgment.1/ Because Plaintiff's motion gives no basis for altering this Court's judgment-- and

Plaintiff's motion is styled a "Rule 59 Motion for Reconsideration." Because, however, Rule 59(e) refers only to motions to alter or amend a judgment, Defendants refer to the motion as such. Fed. R. Civ. P. 59(e). In the event Plaintiff's motion is denied, his Notice of Appeal, Doc. No. 28, will become effective upon the denial of the motion. Fed. R. App. P. 4(a)(4)(B)(i).
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indeed concedes that sufficient notice was not given-- this Court should deny the motion. II. STANDARD OF REVIEW A District Court has considerable discretion in evaluating a motion to reopen a judgment under Rule 59. Because, however, alteration of a judgment is an extraordinary remedy, it is ordinarily appropriate only if "(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law." Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). A district court may disregard legal arguments made for the first time on a motion to amend. Id. "Newly discovered evidence," in the context of a Rule 59 motion, is only evidence which could not have been found earlier through the exercise of due diligence. Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir. 2003). III. ARGUMENT Plaintiff's motion should be denied because it fails to present any of the circumstances required for alteration of a judgment. First, Plaintiff concedes that adequate notice was not given before the filing of the Complaint. Pls. Mem. at 1 n.1, 3 ("The parties agree that no notice of intent of any kind was served by the Plaintiff on the Defendants prior to the commencement of the instant action."). Accordingly this Court was justified in proceeding as if notice was not properly given. Second, Plaintiff concedes that "claims for violation of ESA's Section 4 requirements" require notice. Pls. Mem. at 2. As Defendants argued, and as this Court held, both Counts 1 and 3 are ESA citizen-suits challenging violations of non-discretionary ESA section 4 duties. Order at 2; see McCrary v. Gutierrez, 528 F. Supp. 2d 995, 998 (N.D. Cal. 2007) (challenge to 90-day finding requires 60-day notice); Federation of Fly Fishers v. Daley, 200 F. Supp. 2d 1181, 1185 (N.D. Cal. 2002) (challenge to final listing rule is ESA citizen-suit claim). Accordingly, this Court did not err in dismissing Counts 1 and 3 of the Complaint. Plaintiff argues that Count 2 of his Complaint does not require 60-day notice because it is a claim against NMFS's alleged "maladministration" of the ESA and that such claims are brought
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under the APA. Plaintiff, in proffering such an argument, misreads the Supreme Court's decision in Bennett v. Spear, 520 U.S. 154 (1997). In Bennett, the Supreme Court recognized that a challenge to a Biological Opinion­ the end product of consultation­ proceeds under the APA. Id. at 173. However, when a claim is brought against an action agency­that is, the agency that would initiate consultation­ such a claim proceeds under the ESA. Bennett specifically states that the ESA citizen-suit provision "is a means by which private parties may enforce the substantive provisions of the ESA against regulated parties-both private entities and Government agencies." Id. The Ninth Circuit has repeatedly held that when a plaintiff brings a claim alleging that a government agency has impermissibly failed to initiate or reinitiate Section 7 consultation, the claim is just such an ESA citizen-suit claim. Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005); Environmental Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir. 2001). This is exactly the claim presented in Count 2, where Plaintiff alleges that NMFS is required to initiate consultation on its action in listing the two whale species. Therefore Plaintiff was required to provide 60-day notice, and because Plaintiff failed to do so, this Court did not err in dismissing the claim. Plaintiff further argues that he is bringing a claim that NMFS acted ultra vires in "creating" a new species, and that this purported claim arises not under the ESA but under the APA. Plaintiff's argument is merely a repetition and repackaging of the Complaint's styling of his claims under the APA in order to attempt to skirt the ESA's notice requirement. In either case, Plaintiff is challenging the merits of NMFS's decision to list the Northern right whale as two species. Accordingly, any APA claim is precluded because it is "identical in all relevant respects to the ESA cause of action." Coos County Bd. of Comm'rs v. Kempthorne, 531 F.3d 792, 810 (9th Cir. 2008) (citing Brem-Air Disposal v. Cohen, 156 F.3d 1002, 1004-05 (9th Cir. 1998)). As this Court recognized, then, Plaintiff's restyling of his claims does not relieve the Plaintiff of his obligation to provide 60-day notice. Order at 2. Plaintiff attempts to explain his failure to respond to the motion to dismiss, but does not
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present any basis for amending the judgment. Plaintiff states that he "was unable to file his opposition to the Defendants' motion to dismiss" and that he "was discussing with the Defendants' attorney his plan to ask the Court for an extension." Pls. Mem. at 1. These explanations are at best vague and insufficient. Plaintiff contacted the undersigned -- on the day Plaintiff's opposition was due--regarding Defendants' position on an extension of time. Despite being advised that

Defendants would not oppose an extension to the briefing deadline, Plaintiff filed neither a motion for an extension nor an opposition to Defendants' motion. Moreover, Plaintiff has not credibly explained the basis for the delay. See Fite Decl., ¶ 2, Exh. A. Regardless of the reason for the delay, the fundamental fact remains that Plaintiff was required to give 60-day notice for each of his claims, and indisputably failed to do so. Accordingly this Court did not err in dismissing the Complaint. Although Plaintiff's motion states he "is filing an amended complaint to clarify the jurisdictional source for his claims," Pls. Mem. at 3, no amended complaint has been tendered. Judgment, however, is a bar to amendment under Rule 15(a). See 6 Wright & Miller, Federal Practice & Procedure §1489. Plaintiff has not demonstrated that an amended complaint would cure the jurisdictional defects present in his case, and therefore his motion to alter or amend the judgment should be denied. IV. CONCLUSION This Court did not err in dismissing this case for lack of jurisdiction. Because Plainitff's Rule 59 motion does not establish any error in fact or law in this Court's dismissal order, Plaintiff's motion should be denied.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

MAN AGAINST EXTINCTION, a/k/a RICHARD MAX STRAHAN, Plaintiff, H. DALE HALL, et al., Defendants.

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No. C 08-01488 SI CERTIFICATE OF SERVICE

I hereby certify that on September 5, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such to the attorneys of record. /s/ Lawson E. Fite LAWSON E. FITE

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RONALD J. TENPAS, Assistant Attorney General JEAN E. WILLIAMS, Section Chief LAWSON E. FITE, Trial Attorney, Pro Hac Vice (Oregon Bar No. 055573) U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7369 Washington, DC 20044-7369 Phone: (202) 305-0217 Fax: (202) 305-0275 Email: [email protected] Attorneys for Federal Defendants

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 I, Lawson E. Fite, hereby declare: 20 1. 21 Natural Resources Division of the United States Department of Justice, with primary 22 responsibility for the above-captioned case. I make this declaration based upon personal 23 knowledge, and if called to testify about the fact included herein, I could and would do so 24 competently. 25 2. 26 message I received from the Plaintiff in this case, Max Strahan, on August 8, 2008, with 27 28 1 I certify that attached hereto as Exhibit A is a true and correct copy of an electronic mail I am the Trial Attorney in the Wildlife and Marine Resources Section, Environment and v. H. DALE HALL, et al., Defendants. MAN AGAINST EXTINCTION, a/k/a RICHARD MAX STRAHAN, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. C 08-1488 SI DECLARATION OF LAWSON E. FITE IN SUPPORT OF FEDERAL DEFENDANTS' RESPONSE TO PLAINTIFF'S RULE 59 MOTION

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my response thereto. On August 13, 2008, I discussed the preparation of a joint case management statement with Mr. Strahan. Mr. Strahan did not respond to the inquiries contained in my electronic mail message of August 8, 2008.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 5th day of September, 2008, at Washington, D.C.

/s/ Lawson E. Fite LAWSON E. FITE

Fite Declaration

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No. C 08-1488 SI

Case 3:08-cv-01488-SI Fite, Lawson (ENRD)
From: Sent: To: Subject: Mr. Strahan,

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Fite, Lawson (ENRD) Friday, August 08, 2008 3:59 PM 'Richard Max Strahan ' RE: Strahan v. Hall, No. C 08-1488 (N.D. Cal.)

We would not object to you filing a motion requesting a short extension of 2-3 days on your opposition brief, which is due today, provided that our reply is extended an equivalent amount of time. You may represent in your moving papers that we do not object to a short extension of 2-3 days. The next open hearing date on the Court's calendar is October 10. Given that it has already been seven weeks since we filed our motion, we do not think a further delay of two months is reasonable. At minimum, the case management conference set for 8/22 should proceed. We take no position at this time should you file a motion for a continuance of the hearing on the motion to dismiss, and will review such a motion once it is filed. Please tell me the details of your other commitments in Boston. Thanks, Lawson Fite -----Original Message----From: Richard Max Strahan [mailto:[email protected]] Sent: Friday, August 08, 2008 3:22 PM To: Fite, Lawson (ENRD) Subject: Strahan v. Hall, No. C 08-1488 (N.D. Cal.) 8 August 2009 Mr. Fite, How are you? I have been forced to attand court hearing in Boston at the end of August. This makes it impossible to attend the scheduled hearing on the Rule 12 motion and other matters. I would like you to accede to a continuous to the end of September at a date convenient for you and the court. I have not had the time to respond to your Rule 12 motion as a result of my required involvement in these other cases. I also am asking you to accede to extend the time to respond to your Rule 12 motion as part of a general continuance on current deadlines. of the proceedings. I look forward to hearing from you. In Peace, Richard Max Strahan 617-233-3854

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