United States District Court, D. Montana, Missoula Division
W. Molloy, District Judge
being common issues of fact and law, consolidation of the
above-captioned actions is appropriate pursuant to Rule
42(a)(2) of the Federal Rules of Civil Procedure.
(See CV 16-65-M-DWM, Docs. 63, 64, 66; CV
17-99-M-DWM, Doc. 11.) There is some disagreement, however,
as to the extent of consolidation. Defendant-Intervenors (1)
request that the plaintiffs be required to file a single,
consolidated complaint in the joint action and (2) seek an
order granting them defendant-intervenor status in CV
17-99-M-DWM. (Docs. 64, 65.) Plaintiff WildEarth Guardians
and Plaintiff Center for Biological Diversity object to both
requests, and insist separate complaints and separate
dispositive briefing are necessary. (See Docs. 67;
CV 17-99-M-DWM, Doc. 13.) The plaintiffs emphasize that while
they both raise claims under the National Environmental
Policy Act ("NEPA"), only WildEarth brings a
challenge under the Endangered Species Act ("ESA").
They further argue that Defendant-Intervenors should have
filed their request to intervene in CV 17-99-M-DWM.
argued by Defendant-Intervenors, the two complaints and the
claims raised therein are very similar. For example, both
plaintiffs allege NEPA violations based on the agency's
effects analysis and its failure to prepare an Environmental
Impact Statement. That said, WildEarth also raises challenges
under the ESA. Additionally, WildEarth's NEPA challenges
focus in part on the agency's preparation of an
incidental take statement for Canada lynx and the accuracy of
the agency's scientific analysis. Because the plaintiffs
are distinct organizations that raise similar, but not
identical claims, they are not required to file a
consolidated complaint. The defendants shall answer the
individual complaints in each case.
said, the plaintiffs' claims are similar enough that to
avoid duplicative briefing, they must jointly brief their
NEPA claims. WildEarth may separately brief its ESA claims
(both subject to reasonable word limits). The plaintiffs
shall also file joint statements of undisputed and disputed
facts. The plaintiffs shall also coordinate prior to filing
any motions and shall jointly file any motions seeking a
similar action by the Court on the same issue. These
procedures will streamline the pending litigation and
conserve judicial resources without prejudicing the
parties' rights to litigate their respective causes of
action independently and vigorously in their own best
given the similarity of the issues and the public interest in
adjudicating this matter effectively and efficiently,
Defendant-Intervenors' request to intervene in the member
case (CV 17-99-M-DWM) is granted. See Fed. R. Civ.
P. 24(a)(2). Other than the procedural question of where the
motion to intervene should have been filed, the
plaintiffs' objections to intervention in the member case
is limited to their disagreement with consolidation of
complaints and briefing. As discussed above, a certain amount
of consolidation is appropriate and will not prejudice the
plaintiffs. As a result, the Montana Trappers Association,
National Trappers Association, and Fur Information Council of
America may intervene in CV 17-99-M-DWM.
Defendant-Intervenors shall file answers in both the lead and
member cases. However, because their interests are similar,
Defendant-Intervenors shall also be limited to joint filings
for summary judgment (both briefs and statements of fact) and
are further required to coordinate prior to filing any
motions, and to jointly file any motions seeking a similar
action by the Court on the same issue.
IT IS ORDERED that the above-captioned cases are consolidated
for all further proceedings under the case number CV
16-65-M-DWM and captioned as shown above. The Clerk of Court
shall file this Order in the docket for each case.
FURTHER ORDERED that the defendants in each case shall file
their answers separately under the two respective case
numbers in CM/ECF on or before August 31,
2017. Thereafter, all parties shall file all
documents in the lead case number CV 16-65-M- DWM and spread
the particular documents to the member case.
FURTHER ORDERED that:
Rule 26(f) Conference and Case Management Plan.
parties shall file a proposed case management plan on or
before September 25, 2017. The parties shall
e-mail a copy of the proposed case management plan in Word
Perfect (preferred) or Word format to
email@example.com. Lead trial counsel for the
respective parties shall, at least two weeks before the
proposed case management plan is due, meet to discuss the
nature and basis of their claims and defenses, to develop the
proposed case management plan, and to discuss the
possibilities for a prompt settlement or resolution of the
case. See Fed. R. Civ. P.
case management plan resulting from the Rule 26(f) conference
is not subject to revision, absent compelling reasons.
Contents of Case Management Plan.
proposed case management plan should contain deadlines for
the following pretrial motions and events or should ...