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Pegasus Equine Guardian ASS'N v. U S Army

United States District Court, W.D. Louisiana, Lake Charles Division

January 29, 2019





         Before 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.



         This 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.

         The 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, [1] 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. Id.


         Law & Application

         Governing Filing of an Amicus Brief

         An 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).

         B. Standards Applied to Sheppard's Motion

         The 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.

         Because 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 ...

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