United States District Court, W.D. Louisiana, Lake Charles Division
R. SUMMERHAYS UNITED STATES DISTRICT JUDGE
the court is a Motion for Leave to File Amicus Curiae Brief
[doc. 102] filed by Kimberly Sheppard in support of plaintiff
Pegasus Equine Guardian Association ("Pegasus").
See doc, 102, att. 2, The United States Army and
Brigadier General Patrick D. Frank, defendants in this
matter, oppose the motion and Sheppard has filed a reply.
Docs. 104, 107.
action arises under the Administrative Procedures Act, 5
U.S.C. § 701 et seq., as a challenge to
decisions made by the Army and Brigadier General Frank, in
his official capacity as commanding general of Fort Polk and
the Joint Readiness Training Center ("JRTC"),
concerning horses trespassing on the Army's property at
Fort Polk, Louisiana. Pegasus, plaintiff in this matter, is a
non-profit regional conservation organization and has members
who recreate in and enjoy the landscape of Fort Polk and the
adjoining Kisatchie National Forest. Doc. 1, pp. 4-5,
¶¶ 9-13. It challenges the defendants'
decisions regarding removal of the horses from Fort Polk
under the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321 etseq.,
and the National Historic Preservation Act
("NHPA"), 54 U.S.C. § 306108 etseq.
parties have filed cross-motions for summary judgment, which
are pending before the court. See docs. 96, 101.
Kimberly Sheppard, who is not a party to the suit but is a
former board member of Pegasus,  now seeks leave to file
a brief she prepared ("Sheppard brief)
in partial support of Pegasus's position. Doc. 107, pp.
1, 6; see doc. 102, art. 2 (Sheppard brief). The
defendants oppose the motion because it (1) is untimely, (2)
is not relevant or useful, and (3) does not provide any new
information or raise new issues. Doc. 104. Sheppard counters
that her brief provides new information in the form of her
position that the horses are wild animals and thus subject to
various federal and state protections for that category,
contrary to the position adopted by the Army. Doc. 107.
Accordingly, she maintains, her brief shows that the
horses' rights were not given proper consideration under
NEPA in the defendants' decision-making process.
Filing of an Amicus Brief
individual who participates as an amicus curiae is not a
party in the litigation. Rather, his purpose is to submit
briefing that will assist the court without duplicating or
advocating for a party to the suit. Ctr.for Bio.
Diversity v. Jewell, 2017 WL 4334071, at * 1 (citing
Newark Branch, N.A.A.C.P. v. Town of Harrison, 940
F.2d 792, 808 (3d Cir. 1991)). There is no rule governing the
appearance of an amicus curiae in the district courts.
Instead, "[d]istrict courts have inherent authority to
appoint or deny amici" as derived from Federal
Rule of Appellate Procedure 29. Jin v. Ministry of State
Sec., 557 F.Supp.2d 131, 136 (D.D.C. 2008) (internal
quotations omitted). "The concerns of necessity and
timeliness which undergird [Rule 29] appear no less important
in the district court than in the court of appeals"
Abu-Jamal v. Horn, 2000 WL 1100784, at *5 (E.D. Pa. Aug.
7, 2000). Courts instead refer to Rule 29 in determining
whether to grant leave to file an amicus brief. E.g.,
Auto. Club of N.Y., Inc. v. PortAuth. of N.Y. &
N.J., 2011 WL 5865296, at *1 & n. 1 (S.D.N.Y. Nov.
22, 2011). Though the decision still lies solely within the
district court's discretion, the court may be guided by
factors such as whether the proffered information is
"timely and useful or otherwise necessary to the
administration of justice." United States ex rel.
Gudur v. Deloitte Consulting LLP, 512 F.Supp.2d 920, 927
(S.D. Tex. 2007), affdsub nom. United States ex rel.
Gudur v. Deloitte & Touche, 2008 WL 3244000 (5th
Cir. Aug. 7, 2008) (internal quotations omitted).
Standards Applied to Sheppard's Motion
defendants oppose the motion for leave to file an amicus
curiae brief as (1) untimely, (2) not helpful or useful, and
(3) not providing any new information. Rule 29 generally
requires that an amicus brief be filed "no later than 7
days after the principal brief of the party being supported
is filed." Fed. R. App. Proc. 29(a)(6). Sheppard's
brief was filed over two months after Pegasus filed its
motion for summary judgment. See docs. 96, 102.
Comments to Rule 29, however, show that the deadline may be
flexible so long as the opposing party is given adequate time
to respond to issues raised in the amicus brief. Fed. R. App.
Proc. 29, cmt. (e). The court has not yet taken up the motion
for summary judgment, and the defendants' deadline for
filing their reply brief has not yet passed. Doc. 113. The
untimeliness of the motion would therefore likely serve as
insufficient cause, by itself, to deny Sheppard's motion
and the court will instead address defendants' second and
third arguments first.
this action arises under the APA, the court exercises a
limited scope of review and will only set aside the
challenged decision if it is arbitrary, capricious, not in
accordance with the law, or exceeds the agency's
statutory authority. E.g., Biodiversity Legal Found, v.
Babbitt,146 F.3d 1249, 1252(1 Oth Cir. 1998). NEPA
requires that an agency take a "hard look at
environmental consequences" before making a decision,
but only "prescribes the necessary process for
preventing uninformed-rather than unwise-agency action."
Robertson v. Methow Valley Citizen Council, 490 U.S.
332, 350-51 (1989). Accordingly, a NEPA's mandate is
"essentially procedural" and does not prescribe a
particular result. City of ...