pegasus equine guardian plaintiff, division: lake charles ... · 2/1/2018 · gary m. brito, in...

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

PEGASUS EQUINE GUARDIAN ASSOCIATION,

Plaintiff,

v.

U.S. ARMY and BRIGADIER GENERAL GARY M. BRITO, in his official capacity as Commanding General, JRTC and Fort Polk, Louisiana,

Defendants.

Division: Lake Charles

Case No.: 2:17-CV-00980

Judge: Unassigned

Magistrate Judge: Kathleen Kay

FEDERAL DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION

TO EXCLUDE EXPERT TESTIMONY AND ANY UNPRODUCED EVIDENCE FROM THE PRELIMINARY INJUNCTION HEARING

INTRODUCTION

Plaintiff’s lawsuit challenges the August 8, 2016 decision for the method of removing

trespass horses from Fort Polk, alleging violations of the National Environmental Policy Act

(“NEPA”) and the National Historic Preservation Act (“NHPA”) and seeking review under the

Administrative Procedure Act (“APA”). On January 8, 2018, Plaintiff moved for a preliminary

injunction. ECF No. 43. In addition to opposing the motion itself, Federal Defendants moved to

strike extra-record materials attached to Plaintiff’s motion. ECF No. 52. As explained in our

motion to strike, judicial review in this action should be limited to the Administrative Record,

which was lodged with the Court on November 17, 2017. Camp v. Pitts, 411 U.S. 138, 142

(1973); ECF No. 37. For essentially the same reason, the Court should grant this motion to

exclude any expert testimony and other extra-record evidence from the upcoming preliminary

injunction hearing.

Case 2:17-cv-00980-UDJ-KK Document 57-1 Filed 01/29/18 of 6 PageID #: 1791

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Plaintiff has identified five individuals who they seek to offer as witnesses at the

upcoming hearing: Rickey Robertson, Stacey Alleman, Dr. Brendan Batt, Jennifer Pfaff, and Dr.

Thomas King. Plaintiff states that Alleman will testify relating her “professional experience

caring for and placing horses in Louisiana . . . and her opinion on the Army’s current horse

elimination program.” Plaintiff states that Batt is an equine veterinarian who will provide “his

expert experience and opinions on horse handling, behavior, and responsible horse management

or horse removal plans; alternatives that should have been considered; likely effect on the

horses . . . [and] the declaration by Dr. Bruce Nock, ECF No. 49-2.” Robertson and King are

expected to supplement their declarations, and Pfaff is being offered to testify regarding her

observations of the treatment and condition of Fort Polk Horses in December 2017 and January

2018. Out of these five individuals, only Robertson has been identified as a member of Plaintiff.

In addition to the documents attached as exhibits to the preliminary injunction briefing

and various documents from the administrative record, Plaintiff now seeks to submit previously

unfiled photographs from Alleman and Pfaff purportedly showing “effects of relocation and

abandonment on horses,” and round-up and placement activity.

Expert testimony is not permitted in an APA case to challenge the agency’s decision.

Further, the testimony that Plaintiff seeks to introduce at the hearing has either already been

provided by its many declarations or could have been provided by a declaration that was not

submitted. To the extent that the Court decides to consider the extra-record declarations already

in the record, such testimony will be cumulative. And to the extent that Plaintiff now seeks to

make new arguments with previously unidentified individuals, Plaintiff should not be allowed to

do so. Thus, as explained below, the Court should exclude these witnesses and exhibits not


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contained in the administrative record from the preliminary injunction hearing scheduled for

January 30, 2018.

ARGUMENT

I. FEDERAL DEFENDANTS HAVE ALREADY MOVED TO STRIKE THE DECLARATIONS OF RICKEY ROBERTSON AND DR. THOMAS KING AND TESTIMONY FROM THOSE INDIVIDUALS SHOULD NOT BE RECEVIED In support of its Motion for Partial Preliminary Injunction, Plaintiff submitted a number

of declarations and other extra-record materials. Federal Defendants moved to strike, in whole

or in part, many of the declarations primarily on the grounds that they constituted extra-record

evidence from experts or non-parties. ECF No. 52. For the same reasons, additional testimony

from Mr. Robertson and Mr. King should not be received.

The declarations of Mr. King and Mr. Robertson attempt to supplant the expert opinions

relied on by Federal Defendants. This is improper. It is well-settled that “a court may not

‘substitute [its] own judgment for that of the agency by considering expert testimony that was

not made a part of the administrative record.’” Aquifer Guardians in Urban Areas v. Federal

Highway Admin., 779 F. Supp. 2d 542, 565 (W.D. Tex. 2011) (quoting Friends of Richards-

Gebaur Airport v. FAA, 251 F.3d 1178, 1190 (8th Cir. 2001) (upholding CE and refusing to

consider extra-record “citizen letters and expert testimony”)). Indeed, permitting expert

testimony to second-guess the substantive decision of the agency would subvert the entire

administrative review process, transforming a discretionary review of the administrative record

into a de novo proceeding. Thus, this testimony and their corresponding declarations should be

stricken as improper extra-record evidence.


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II. EXPERT TESTIMONY SHOULD BE EXCLUDED FROM THE PRELIMINARY INJUNCTION HEARING

As discussed above, in an APA action, Plaintiff cannot property offer extra-record

testimony from putative experts to challenge the agency’s decision or to ask the Court to

implement Plaintiff’s own views about the management of Fort Polk. Alleman, Batt, and King

should be precluded from testifying as Plaintiff has stated its intent to do exactly what is

prohibited in an APA case. The Army cannot be found to have acted arbitrarily or capriciously

under NEPA based on factors that were never presented to the agency during its environmental

review. Testimony that merely disputes the substance of analysis in the Administrative Record

is inadmissible.

The fact that this matter is currently before the Court on a motion for preliminary

injunction does not change the applicability of the APA. Further, the Administrative Record has

already been produced in this action and is available to Plaintiff. That record is the proper focus

of Plaintiff’s motion for a preliminary injunction and for this Court to evaluate the likelihood of

success of Plaintiff’s merit arguments. Plaintiff has not identified an applicable exception to the

record rule for these witnesses or the unproduced evidence. Plaintiff should therefore be limited

to the record.

Mr. Robertson, the only member of Plaintiff who has been identified as a hearing

witness, should be limited to testifying as to standing or alleged irreparable injury, if additional

evidence is received. His extra-record opinions regarding the history of the Peason Ridge and

Fort Polk area should be excluded.

In short, Plaintiff’s list of witnesses and prior declarations make clear that it intends to

ask this Court to use extra-record evidence “to determine the correctness or wisdom of the

agency’s decision,” something a court is “never permitted” to do. San Luis & Delta-Mendota


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Water Auth. v. Locke, 776 F.3d 971, 993 (9th Cir. 2014) (quotation omitted); see also Sierra

Club v. Sigler, 695 F.2d 957, 977 (5th Cir. 1983) (citation omitted). Plaintiff should not engage

in inappropriate post hoc second-guessing of the agency’s compliance with NEPA and the

NHPA.

CONCLUSION

For the forgoing reasons, Federal Defendants move to exclude all expert testimony and

extra-record exhibits from the preliminary injunction hearing set for January 30, 2018, as they

improperly address the merits of Plaintiff’s claims.

Respectfully submitted, this 29th day of January, 2018,

JEFFREY H. WOOD Acting Assistant Attorney General Environment and Natural Resources Division s/ Davené D. Walker

Davené D. Walker, Trial Attorney U.S. Department of Justice Natural Resources Section P. O. Box 7611 Washington, DC 20044-7611 Telephone: (202) 353-9213 Facsimile: (202) 305-0506 Email: [email protected]

ALEXANDER C. VAN HOOK ACTING UNITED STATES ATTORNEY s/ Desiree Williams-Auzenne DESIREE WILLIAMS-AUZENNE (#30978) Assistant United States Attorney 800 Lafayette Street, Suite 2200 Lafayette, Louisiana 70501 Telephone: (337) 262-6618 Facsimile: (337) 262-6693 Email: [email protected]


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CERTIFICATE OF SERVICE

I hereby certify that on January 29, 2018, a copy of the foregoing Federal Defendants’

Memorandum in Support of Their Motion to Exclude Expert Testimony and Any Unproduced

Evidence from the Preliminary Injunction Hearing was filed electronically with the Clerk of Court

using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation

of the court’s electronic filing system. I also certify that according to the Court’s Mailing

Information, there are no manual recipients.

s/ Davené D. Walker Davené D. Walker, Trial Attorney U.S. Department of Justice



Pegasus Equine Guardian Association

Plaintiff, v.

U.S. Army and Brigadier General Gary M. Brito, in his official capacity as Commanding General, JRTC and Fort Polk, Louisiana

Defendants.


Case No. 2:17-CV-00980

Judge: Unassigned


Ref. 137-002.2

Rule 65.1 Certification

I, Lisa Jordan, an attorney representing the Plaintiff, Pegasus Equine Guardian

Association, certify that counsel for the Plaintiff provided actual notice of their application for a

Preliminary Injunction to the Defendants’ attorneys via the ECF system at the time of making the

application on January 8, 2018. ECF No. 43.

Further, I certify that copies of all pleadings and other papers which Plaintiffs may

present to the Court at the preliminary injunction hearing on January 30, 2018, have been

provided to counsel for the Defendants with the exception of the following:

1. Photographs from witness Stacey Alleman, to be submitted as Exhibit S at the

Preliminary Injunction hearing. These photographs were not previously provided

because counsel for the Plaintiff just received them on the evening of January 28,

2018, and were able to convert them to PDF format this morning. The photographs,

which Plaintiffs will separately attach to a Move for Leave to Amend their

Preliminary Injunction, are demonstrative photos that will be used to explain to the

Court the likely outcomes for “giveaway” horses in Louisiana. This evidence goes to

irreparable harm, the failure of the government to consider the effect of its plan on the

Case 2:17-cv-00980-UDJ-KK Document 58 Filed 01/29/18 Page 1 of 2 PageID #: 1797

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horses themselves, that the need for an injunction outweighs the harm to the

defendants, that the injunction would not harm the public interest, and to rebut the

Army’s opposition to the preliminary injunction.

2. Photographs from witness Jennifer Pfaff, which the Plaintiffs do not yet have but

which they hope to have in time for the evidentiary hearing on January 30, 2018.

Plaintiffs will provide these photographs to counsel for the Army as soon as they

receive them. The photographs from Jennifer Pfaff are of the horses at Ft. Polk during

roundup, as well as of the horses afterwards, and were taken in late 2017 and early

2018. They will be used to show irreparable harm, the failure of the government to

consider the effect of its plan on the horses themselves, that the need for an injunction

outweighs the harm to the defendants, that the injunction would not harm the public

interest, and to rebut the Army’s opposition to the preliminary injunction.

Respectfully submitted on January 29, 2018

s/ Lisa W. Jordan Lisa W. Jordan, La. Bar. 20451 Tulane Environmental Law Clinic 6329 Freret Street New Orleans, LA 70118-6321 Phone: (504) 314-2481 Fax: (504) 862-8721 Email: [email protected] Counsel for Pegasus Equine Guardian Association

Certificate of Service

I hereby certify that on January 29, 2018, this pleading was filed and transmitted to all

counsel of record via the Court’s CM/ECF electronic filing system.

s/Lisa W. Jordan Lisa W. Jordan




Plaintiff, v.


Defendants.


Case No. 2:17-CV-00980

Judge: Unassigned


Ref. 137-002.2

Plaintiffs’ Motion for Leave to Supplement Motion for Partial Preliminary Injunction

Pursuant to Rule 7.4.1 of this Court’s Local Rules, Plaintiffs respectfully move to

supplement their Motion for Partial Preliminary Injunction, ECF No. 43, with two sets of

photographs that Plaintiffs intend to offer at the preliminary injunction hearing on January 30,

2018. Plaintiffs were not aware of either set of photographs at the time they filed their Motion for

Partial Preliminary Injunction on January 8, 2018.

One set of photographs is attached to this Motion as Exhibit A. These photographs will

be offered through the testimony of Plaintiff’s witness Stacey Alleman. On Friday, January 26,

2018, Plaintiffs notified counsel for the Defendants that they anticipated calling Ms. Alleman to

testify, the subject matter of her testimony, and that Plaintiffs’ exhibits may include photographs

offered through Ms. Alleman showing the effects of relocation and abandonment on horses in

Louisiana. At that time, Plaintiffs indicated that the photographs were unfiled, as counsel for

Plaintiffs did not yet have possession of the photographs. Counsel for the Plaintiffs obtained the

photographs yesterday evening, converted them this morning into usable format, and provided

them today to counsel for the Defendants. Plaintiffs anticipate these photographs being marked

as Exhibit S at the preliminary injunction hearing.


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Plaintiffs plan to offer the second set of photographs into evidence through the testimony

of Plaintiff’s witness Jennifer Pfaff. On Friday, January 26, 2018, Plaintiffs notified counsel for

the Defendants that they anticipated calling Jennifer Pfaff to testify, that the subject matter of her

testimony relates to her observations of the treatment and condition of the Fort Polk horses in

December 2017 and January 2018, and that Plaintiffs’ exhibits may include photographs offered

through Ms. Pfaff of Fort Polk horses, horse round-up activity, and horse-placement activity.

Counsel for the Plaintiffs are not yet in possession of these photographs but will provide them to

counsel for the Defendants as soon as counsel receives them.

Undersigned counsel for Plaintiffs contacted counsel for the Defendants to obtain their

consent to the filing and granting of the Motion to Supplement in accordance with Local Rule

7.4.1. Counsel for the Defendants responded that the Defendants oppose this motion.

Wherefore, Pegasus Equine Guardians Association respectfully requests that the Court

grant its Motion to Supplement the Motion for a Partial Preliminary Injunction.

Respectfully submitted on January 29, 2018

s/ Lisa W. Jordan Lisa W. Jordan, La. Bar. 20451 Tulane Environmental Law Clinic 6329 Freret Street New Orleans, LA 70118-6321 Phone: (504) 314-2481 Fax: (504) 862-8721 Email: [email protected] Counsel for Pegasus Equine Guardian Association

CERTIFICATE OF SERVICE AND CERTIFICATE OF COMPLIANCE WITH WESTERN DISTRICT OF LOUISIANA LOCAL RULE 7.4.1

I hereby certify that I contacted counsel for the Defendants in an attempt to obtain

consent for the filing and granting of the Motion for Leave to Supplement the Motion for Partial


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Preliminary Injunction. The Defendants oppose granting of the Motion for Leave to Supplement

the Motion for Partial Preliminary Injunction.

On January 29, 2018, I caused a copy of this motion to be served through the Court’s

CM/ECF system to all parties.

s/Lisa W. Jordan Lisa W. Jordan


Case 2:17-cv-00980-UDJ-KK Document 59-1 Filed 01/29/18 Page 1 of 10 PageID #: 1802

mhall9

Rounded Exhibit Stamp



Plaintiff, v.


Defendants.


Case No. 2:17-CV-00980

Judge: Unassigned


Ref. 137-002.2

Order

Having considered the Plaintiff’s Motion for Leave to Supplement their Motion for a

Partial Preliminary Injunction, the Court hereby finds that the Motion is well taken and shall be

GRANTED. IT IS ORDERED that the Plaintiffs may supplement their Motion for a Partial

Preliminary Injunction to include photographs to be offered through witnesses Stacey Alleman

and Jennifer Pfaff at the preliminary injunction hearing.

The Court reserves ruling on the admissibility of the photographs pending the testimony

and arguments at the preliminary injunction hearing.

Lake Charles, Louisiana, this day of January, 2018.

_____________________________________________ The Honorable Kathleen Kay United States Magistrate District Judge


pegasus equine guardian plaintiff, division: lake charles ... · 2/1/2018 · gary m. brito, in...

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