Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 1 of 16 Rebecca K. Smith P.O. Box 7584 Missoula, Montana 59807 (406 531-8133 (406 830-3085 FAX publicdefense@gmail.com James Jay Tutchton Tutchton Law Office, LLC 6439 E. Maplewood Ave. Centennial, CO 80111 (720 301-3843 jtutchtontlo@gmail.com Admitted pro hac vice Attorneys for Plaintiffs Alliance for the Wild Rockies and Friends of the Clearwater UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION DEFENDERS OF WILDLIFE, et al., Plaintiffs, vs. KEN SALAZAR, et al., Defendants, Case No. 09-77-M-DWM Case No. 09-82-M-DWM RESPONSE TO MOTION FOR AN INDICATIVE RULING
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 2 of 16 INTRODUCTION Pursuant to the Court s Order of March 21, 2011 (ECF Doc. # 193, Plaintiffs Alliance for the Wild Rockies and Friends of the Clearwater (collectively Non-Settling Plaintiffs hereby indicate their opposition to the Motion for an Indicative Ruling filed jointly by a group of Settling Plaintiffs and the Federal Defendants (collectively the Settling Parties. ECF Doc. # 187. Though counsel for the Non-Settling Plaintiffs are new to this long-running litigation, it is fairly easy to understand the basic motivation behind the proposed settlement: In order to avoid potential Congressional action delisting the wolf in Montana and Idaho and possibly in adjacent states or even nationwide, the Settling Plaintiffs have struck a deal with the Federal Defendants to delist the wolf in Montana and Idaho via settlement instead. Whatever the wisdom of this arrangement when viewed through a political lens, this means to accomplish it is inappropriate: The Settling Parties are asking the Court to restore to operation a Rule it has found illegal. The sole question before the Court is not whether this arrangement represents shrewd politics, but whether it is legal. Because the Non- Settling Plaintiffs believe that it is not, they oppose the pending Motion. STANDARD OF REVIEW The pending Motion for an Indicative Ruling is filed pursuant to Fed. R. Civ. P. 62.1. The Settling Parties have appropriately set out the standard for 1
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 3 of 16 review of such a motion in their brief. ECF Doc. # 188 at 8-9. 1 The Court has indicated that the Motion appears to raise a substantial issue. Order, ECF Doc. # 193 at 3. Because a finding that a motion for an indicative ruling raises a substantial issue does not require a court to grant the motion upon a return of jurisdiction from the appellate court, the Non-Settling Plaintiffs do not necessarily quarrel with this limited conclusion. 2 See Fed. R. Civ. P. 62.1 (Advisory Committee Note(2009( The district court is not bound to grant the motion after stating that the motion raises a substantial issue; further proceedings on remand may show that the motion ought not be granted.. However, because in deciding a motion for an indicative ruling the district court may also indicate that it would grant the motion upon a remand from the court of appeals for that purpose, the Non-Settling Plaintiffs must further set out their opposition at this juncture. The question of whether this Court should ultimately grant the pending Motion and stay the remedial aspects of its Judgment, vacating and setting aside the 2009 Delisting Rule as applied to Montana and Idaho, calls for the application of an additional standard of review; that contained in Fed. R. Civ. P. 60(b. Here 1 Page number references refer to ECF page numbers, not internal page numbers in the documents cited. 2 The Non-Settling Plaintiffs state that they do not necessarily quarrel with the limited conclusion that the pending Motion raises a substantial issue, based on the assumption that, as contemplated in the Advisory Committee Notes to Rule 62.1, the Non-Settling Plaintiffs would be given an opportunity during further proceedings on remand to argue that the Motion ultimately ought not be granted. See Fed. R. Civ. P. 62.1 (Advisory Committee Note(2009. 2
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 4 of 16 the Settling Parties Motion is premised upon Fed. R. Civ. P. 60(b(5 & (6. See Brief in Support, ECF Doc. # 188 at 9-10. Rule 60(b(5 provides a court may relieve a party from a final judgment when the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable. Rule 60(b(6 provides a court may relieve a party from a final judgment for any other reason that justifies relief. See Id. More specifically, in order to be eligible for relief from a judgment pursuant to Fed. R. Civ. P. 60(b(5, a movant must demonstrate a significant change in either factual conditions or in the law. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 368 (1992 3 ; see also Agostini v. Felton, 521 U.S. 203, 216 (1997( Obviously, if neither the law nor the facts have changed, there would be no need to decide the propriety of a Rule 60(b(5 motion. In order to be eligible for relief from a judgment pursuant to the catch-all provision in Fed. R. Civ. P. 60(b(6 a movant must show that extraordinary circumstances justify such relief. Ackerman v. U.S., 340 U.S. 193, 199 (1950. A court may only grant such relief when it offends justice to deny [it]. Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10 th Cir. 1999. 3 Though Rufo dealt with a consent decree there is no basis for distinguishing a consent decree from a final judgment entered by a court for purposes of Rule 60(b(5. 3
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 5 of 16 Finally, any motion for relief from judgment under either Rule 60(b(5 or (6 must be made within a reasonable time. Fed. R. Civ. P. 60(c. In determining what is a reasonable time, courts consider the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other parties. Ashford v. Steuart, 657 F.2d 1053, 1055 (9 th Cir. 1981. Because, as argued below, the Non-Settling Plaintiffs do not believe that the Settling Parties can satisfy the standards for relief from judgment contained in either Rule 60(b(5 or (6, or that their Motion is timely within the meaning of Rule 60(c, they believe the Motion must ultimately be denied. ARGUMENT I. The Motion is Not Timely The Settling Parties argument that their Motion is timely rests on the proposed settlement being negotiated in good faith over the past several months. See Brief in Support, ECF Doc. # 188 at 10 n. 6. This much is apparently true. However, the Settling Parties do not address the other factors a court should consider in determining whether a motion pursuant to Rule 60(b is timely within the meaning of Rule 60(c namely the interests of other parties in the finality of the judgment, the reason for delay, the practical ability of the litigants to learn earlier of the grounds relied upon, and the prejudice to the other parties. See 4
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 6 of 16 Ashford, 657 F.2d at 1055. Here proper consideration of all of these factors together appears to cut in opposition to a finding of timeliness. First, the Non-Settling Plaintiffs have an obvious interest in the finality of the Court s existing judgment, including the provisions for relief. Even more obvious is the prejudice to the Non-Settling Plaintiffs that would arise from the removal of those provisions of the Court s judgment providing relief -- which the Non-Settling Plaintiffs litigated to obtain. Neither of these factors is addressed in the pending Motion. Accordingly, under the analysis required by the Ninth Circuit in Ashford, a finding the pending Motion is timely is unsupported. Second, though the Settling Parties point to settlement negotiations taking place over the past few months as the reason for delay in bring their request for relief from judgment to the Court, the Settling Parties make no substantial argument, at least not in their Court filings, that any new developments precipitated this delay. Rather what it appears has happened is that the Settling Plaintiffs determined that the relief they obtained from this Court was not politically supported by certain Congressional actors. The pending Motion makes no effort to explain or justify the factors actually leading to Settling Parties delay in requesting relief from the judgment. What is missing from the pending Motion is the truth. While the settlement negotiations understandably took some time to complete, the Settling Plaintiffs do not explain honestly how political pressure and 5
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 7 of 16 potential proposed amendments to the Endangered Species Act ( ESA arose and apparently gave rise to a negotiation in which the Settling Plaintiffs decided to relinquish the relief they obtained from this Court. The delay at issue here is not simply explained by a statement that settlement negotiations take time, but must include an explanation as to why the Settling Plaintiffs delayed in arriving at their political calculation that the relief obtained from this Court needed to be negotiated away. The Settling Parties have explained the mechanism of delay, but not its causation. This failure of the pending Motion to explain the underlying reason for delay (the development of political pressure as opposed to the mechanism of delay (settlement negotiations gives rise to the third and final infirmity in the Settling Parties argument their Motion is timely under Rule 60(c, the Settling Parties have not explained why they lacked the practical ability to learn earlier of the grounds relied upon. Ashford, 657 F.2d at 1055. From the Non-Settling Plaintiffs perspective, the question is more direct why ask for relief you apparently didn t really want? In short, though the Court may ultimately determine the Settling Parties have filed the pending Motion within a reasonable time, it should not do so without a full and accurate consideration of the factors for determining what is a reasonable time under Rule 60(c as articulated by the Ninth Circuit. The Motion and 6
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 8 of 16 supporting brief do not allow for such full and accurate consideration and, at present, a finding that the Settling Parties have filed the Motion within a reasonable time is unsupported. II. Relief From the Judgment is Not Appropriate Under Rule 60(b(5 In order to qualify for relief from the judgment under Rule 60(b(5 the Settling Parties must point to a significant change in either factual conditions or in the law. Rufo, 502 U.S. at 368. See also Agostini, 521 U.S. at 216 ( Obviously, if neither the law nor the facts have changed, there would be no need to decide the propriety of a Rule 60(b(5 motion. Here it is apparent that there has been no change in the governing law and the pending Motion does not attempt to articulate any such change. Indeed, the pending Motion specifically indicates that it seeks no change in the Court s conclusions of law, but only its provision for relief. See Brief in Support, ECF Doc. # 188 at 5 n.3. As to the Court s provision of relief the question then becomes what facts have changed. The Settling Plaintiffs and the Non-Settling Plaintiffs both originally argued that [t]he decision to eliminate ESA protections for gray wolves in the northern Rockies will also cause irreparable ecological harm to the ecosystems where wolves are now found. Complaint, ECF Doc. # 1 at 11, 22. Similarly, both the Settling and Non-Settling Plaintiffs originally argued a connected population of 2,000-5,000 wolves is necessary to ensure a genetically 7
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 9 of 16 viable northern Rockies wolf population over the long term. Id. at 19, 43. The Non-Settling Plaintiffs stand by these factual assertions. The Settling Plaintiffs have not explained what they believe has changed with respect to these factual conditions. More importantly, specifically with respect to the 2009 Delisting Rule both the Settling and Non-Settling Plaintiffs argued that [w]hile the Delisting Rule asserts that the population may remain above 1,000 wolves under state management, FWS did not seek or obtain commitments from Montana and Idaho to manage for any more than 100-150 wolves in each state. Id. at 28, 61. 4 Yet, it is these very state management plans that all Plaintiffs once argued were inadequate and illegal that the Settling Plaintiffs now wish to put back in place via their proposed settlement. Again, the Settling Plaintiffs have failed to articulate any change in their assessment of what is factually required under the state management plans of Montana and Idaho, or how these plans they now wish to return to force no longer risk irreparable harm to the wolf population and the ecosystem. In sum, the state wolf management plans of Idaho and Montana that the 4 See also, Plaintiffs Reply in Support of Motion for a Preliminary Injunction, ECF Doc. # 89 at 14-15 ( Nor does FWS [the U.S. Fish and Wildlife Service] attempt to support the Delisting Rule s claim that Idaho and Montana have committed to maintaining more than 1,000 wolves more than three times the state s actual commitment.. 8
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 10 of 16 Settling Plaintiffs now wish to return to force remain unchanged. The wolf population remains essentially unchanged, though it has declined somewhat. See Brief in Support, ECF Doc. # 188 at 23-24. The illegality of the Federal Defendants delisting of only part of a Distinct Population Segment and the Solicitor s Memorandum that supported this piecemeal delisting remains unchanged. The Settling Parties have not pointed to any change in fact or law that justifies relief from the remedial portions of this Court s judgment. In fairness, the Settling Parties could point to the provisions of the proposed settlement agreement itself as operating some change in factual conditions and thus the Settling Plaintiffs prior assessment of the impact of implementation of the Idaho and Montana wolf management plans on the wolf population. However, such an argument calls into question what does the proposed settlement agreement actually require. Here the answer is very little. First, the proposed settlement agreement requires the Federal Defendants to withdraw the Solicitor s Opinion that this Court has already determined provides an illegal interpretation of the relevant provisions of the ESA. See Settlement Agreement, ECF Doc. # 188-1 at 5 2. This provides no additional protection for wolves. Second, the settlement provides the Federal Defendants will begin, but not necessary complete, a public process to provide a new interpretation of the relevant ESA provisions. Id. 3. Again, there is no new protection for wolves here. Third, 9
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 11 of 16 the settlement states the Delisting Rule relies on documents that are already part of the Administrative Record. Id. 4. Fourth, the settlement provides that in establish a new Delisting Rule, FWS will consider the relevant state management plans, the required elements of the ESA, and various delisting alternatives, but the settlement does not constrain FWS s administrative options in any significant manner. Id. at 5-6, 5. Fifth, the settlement requires FWS to gather data, monitor wolf management, and comply with various provisions of the ESA, but no substantive outcomes are required. Id. at 6-7, 6-7. Sixth, and finally, the settlement requires FWS to seek an independent scientific review of wolf management and make this review publicly available, but it does not require FWS to act upon, or even to heed in any manner whatsoever, the conclusions of this independent scientific review. Id. at 7, 8. In sum, the proposed settlement agreement offers little if any certain additional protection for wolves. More importantly, it neither requests any change in the Idaho or Montana wolf management plans all Plaintiffs previously argued and factually asserted were inadequate, nor addresses how re-instituting a partial Delisting Rule the Court previously found to be illegal is now appropriate. Accordingly, the pending Motion fails to satisfy the requirements for relief from judgment under Rule 60(b(5. 10
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 12 of 16 III. Relief From the Judgment is Not Appropriate Under Rule 60(b(6 Failing to establish any change in the governing law or factual situation under Rule 60(b(5, the Settling Parties must rely on the catch-all provision in Rule 60(b(6 any other reason that justifies relief to support their Motion. Here, the Settling Parties rely first on the Court s discretion and ability to leave illegal rules in place during remand. Brief in Support, ECF Doc. # 188 at 21. However, the Settling Parties acknowledge only in a footnote that in the first case they cite in support of this argument, Idaho Farm Bureau Fed n v. Babbitt, 58 F.3d 1392, 1405 (9 th Cir. 1995, the court left ESA protection for a species in place pending a remand, and contrary to the present request, did not remove it during remand. See Brief in Support, ECF Doc. # 188 at 21 n.8. Additionally, the Settling Parties do not argue that there was anything incorrect with the Court s initial determination, under its discretion, that the Delisting Rule needed to be set aside during remand. Second, the Settling Parties argue that the settlement agreement will provide protection for delisted wolves. Id. at 22. However, as discussed above, the settlement agreement provides little if any actual protection for delisted wolves. Provisions for additional monitoring, data collection, or even independent scientific assessment do not necessarily translate into additional on the ground protection because the settlement agreement does not require FWS to take any specific action once informed with the new monitoring data or independent 11
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 13 of 16 scientific assessment. Moreover, as argued above, the Settling Plaintiffs make no attempt to explain how the state wolf management plans of Idaho and Montana they once found so inadequate have now become adequate. Third, the Settling Parties argue the settlement agreement will ensure the integrity of the Endangered Species Act. Id. at 22-23. The Settling Parties expound that they are motivated by a desire to help resolve or at least diminish the ongoing public controversy surrounding the issue of wolf management in the northern Rockies. Id. at 23. Here what the Settling Parties mean through their vague language is closer to the truth. They desire to head off Congressional efforts to amend the ESA. However, the settlement agreement does not ensure that such Congressional efforts will diminish. The Settling Parties have made a political calculation. Whether sound or not, the fact remains that the political calculations of the Settling Plaintiffs should not negate the legal rights on the Non-Settling Plaintiffs to the relief that they have obtained from this Court. Such a result, sacrificing the legal rights of some to the political calculations of others is hardly just or equitable. More importantly, it is wildly inappropriate for a court to consider political backlash in enforcing the law as written. As the Supreme Court has stated in interpreting the ESA it is for courts to enforce [the law] when enforcement is sought. TVA v. Hill, 437 U.S. 153, 194 (1978. It is not for the courts to amend 12
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 14 of 16 their judgments to deny relief previously afforded as just because some plaintiffs fear a Congressional response. If Congress desires to amend the governing law that is within its constitutional authority. However, it is equally within the authority and responsibility of the courts to enforce the law as written, until Congress acts. Third, and finally, the Settling Parties argue the Court should grant the pending Motion because it will promote the laudable goal of settlement. Brief in Support, ECF Doc. # 188 at 25. While settlement is certainly a laudable goal, its promotion is difficult when not all parties agree to a proposed settlement. Here it is far from clear that approval of the pending settlement among less than all parties will actually reduce litigation. In this sense, the Settling Parties are speculating. It is unclear whether the many Intervenor-Defendants agree to the terms of the proposed settlement and will, like the Federal Defendants, consider dropping their respective appeals. More certain, the Non-Settling Plaintiffs are not agreeing to forego further litigation either through the instant case, or by agreeing not to challenge any future delisting rules or refrain from petitioning for the relisting of wolves if delisted. Additionally, because not all plaintiffs are in agreement the ability of the settlement to resolve the related litigation, Defenders of Wildlife, et al. v. Gould, 08-cv-14-DWM (D. Mont., is also hypothetical. See Brief in Support, ECF Doc. # 188 at 27 (dismissal of Gould is an integral part of 13
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 15 of 16 settlement. The Gould litigation may well be continued by the Non-Settling Plaintiffs and/or Intervenor-Defendants. Accordingly, the ability of the instant proposed settlement to actually settle anything remains an open question. CONCLUSION For all of the reasons set forth above, the Non-Settling Plaintiffs respectfully request the Court deny the pending Motion for an Indicative Ruling. However, if the Court is inclined, as it has indicated, to determine that the pending Motion presents a substantial issue, the Non-Settling Plaintiffs respectfully request that upon remand from the Ninth Circuit, this Court conduct an additional hearing, with opportunity for further briefing and argument, to fully consider the underlying motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b. Respectfully submitted this 22nd day of March, 2011, S/James J. Tutchton James Jay Tutchton Tutchton Law Office, LLC 6439 E. Maplewood Ave. Centennial, CO 80111 (720 301-3843 jtutchtontlo@gmail.com Rebecca K. Smith P.O. Box 7584 Missoula, Montana 59807 (406 531-8133 (406 830-3085 FAX publicdefense@gmail.com 14
Case 9:09-cv-00077-DWM Document 194 Filed 03/22/11 Page 16 of 16 CERTIFICATE OF SERVICE I certify that on March 22, 2011, I electronically filed the foregoing document with the Clerk of the U.S. District Court for the District of Montana using the Court s CM-ECF System which will send a Notice of Electronic Filing to all counsel of record. S/ James J. Tutchton James J. Tutchton 15