Forest Service Employees for Environmental Ethics v. United States Forest Service et al, No. 2:2016cv00293 - Document 30 (E.D. Wash. 2017)
Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Defendants Motion for Summary Judgment ECF No. 22 is GRANTED. Plaintiffs Motion for Summary Judgment ECF No. 14 is DENIED. Plaintiffs Motion for Judicial Notice ECF No. 17 is DENIED AS MOOT. Lake Wenatchee Fire & Rescues Motion for Leave to File Amicus Curiae Brief ECF No. 26 is DENIED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Forest Service Employees for Environmental Ethics v. United States Forest Service et al Doc. 30 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, NO: 2:16-CV-0293-TOR 8 Plaintiff, 9 v. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 10 11 UNITED STATES FOREST SERVICE, and UNITED STATES DEPARTMENT OF AGRICULTURE, 12 Defendants. 13 14 BEFORE THE COURT are Plaintiff Forest Service Employees for 15 Environment Ethics’ Motion for Summary Judgment (ECF No. 14) and Motion for 16 Judicial Notice (ECF No. 17); Defendants United States Forest Service and the 17 United States Department of Agriculture’s Cross-Motion for Summary Judgment 18 (ECF No. 22); and Lake Wenatchee Fire & Rescue’s Motion for Leave to File 19 Amicus Curiae Brief (ECF No. 26). The motions were submitted for consideration 20 ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 without oral argument. The Court has reviewed the motions and the record, and is 2 fully informed. For the reasons discussed below, Defendants’ Motion for Summary 3 4 Judgment (ECF No. 22) is GRANTED and Plaintiff’s Motion for Summary 5 Judgment (ECF No. 14) is DENIED. Plaintiff’s Motion for Judicial Notice (ECF 6 No. 17) is DENIED AS MOOT, as the untimely submitted documents are 7 immaterial to the Order. Lake Wenatchee Fire & Rescue’s Motion for Leave to 8 File Amicus Curiae Brief (ECF No. 26) is DENIED. BACKGROUND1 9 The instant suit arises out of the Forest Service’s attempt to stop the 10 11 “Wolverine Fire.” The Wolverine Fire was ignited by lightning on June 29, 2015, 12 on a ridgetop in the Chelan Ranger District of the Okanogan-Wenatchee National 13 Forest, in Chelan County, Washington. ECF No. 23 at 2, ¶ 1. The conditions were 14 such that fighting the fire directly was not feasible, and firefighters were 15 withdrawn from the area due to risk of injury. ECF No. 23 at 2, ¶¶ 2-3. The fire 16 17 1 The underlying facts are not disputed. The crux of Plaintiff’s complaint 18 relates to the underlying regulations, not the propriety of the community protection 19 line, so the facts are merely recited for context, but are ultimately immaterial to the 20 disposition of the case. ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 2 1 quickly grew in severity and complexity—by August 16, 2015 the fire was 2 approximately 40,500 acres in size (over 63 square miles), and then grew to 62,000 3 acres (nearly 100 square miles) by August 27, 2015. ECF No. 23 at 4, ¶¶ 13, 18. 4 The Forest Service first two attempts to contain the fire were unsuccessful, 5 as the fire escaped both containment lines on August 1 and August 17, 2015. ECF 6 No. 23 at 3-4, ¶¶ 10, 14. From August 17 through August 31, 2015, the fire spread 7 south at a rate of one to three miles per day. ECF No. 23 at 4, ¶ 15. By the end of 8 August, the Incident Management Team assigned to the fire, after considering the 9 lack of natural barriers, extreme fuel loading, absence of adequate safety zones, 10 and severity of the fire, decided a Community Protection Line (CPL) was 11 necessary in order to protect life, property, and resources. ECF No. 23 at 4, ¶ 20. 12 On August 30, 2015 the Forest Service began constructing the CPL, 13 describing the CPL as an approximately 20-mile long contingency line consisting 14 of a roughly 300 foot wide thinning of vegetation to “allow safe and efficient 15 firefighting with a good chance of stopping forward spread of the fire.” See ECF 16 No. 23 at 5, ¶¶ 22-24. The CPL project was near completion when the Forest 17 Service halted construction after rain showers slowed the fire. See ECF No. 23 at 18 6, ¶¶ 29-33. 19 Plaintiff Forest Service Employees for Environmental Ethics initiated this 20 suit against Defendants United States Forest Service and United States Department ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 3 1 of Agriculture on August 16, 2016—well after the construction of the CPL— 2 complaining that the CPL was constructed without complying with the National 3 Environmental Protection Act (NEPA). The parties filed cross-motions for 4 summary judgment on this issue, and these motions are now before the Court. STANDARD OF REVIEW 5 6 A movant is entitled to summary judgment if “there is no genuine dispute as 7 to any material fact and the movant is entitled to judgment as a matter of law.” 8 Fed. R. Civ. P. 56(a). A fact is “material” if it might affect the outcome of the suit 9 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 10 (1986). An issue is “genuine” where the evidence is such that a reasonable jury 11 could find in favor of the non-moving party. Id. The moving party bears the 12 “burden of establishing the nonexistence of a ‘genuine issue.’” Celotex Corp. v. 13 Catrett, 477 U.S. 317, 330 (1986). “This burden has two distinct components: an 14 initial burden of production, which shifts to the nonmoving party if satisfied by the 15 moving party; and an ultimate burden of persuasion, which always remains on the 16 moving party.” Id. 17 Only admissible evidence may be considered. Orr v. Bank of America, NT 18 & SA, 285 F.3d 764 (9th Cir. 2002). Per Rule 56(c), the parties must support 19 assertions by: “citing to particular parts of the record” or “showing that the 20 materials cited do not establish the absence or presence of a genuine dispute, or ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 4 1 that an adverse party cannot produce admissible evidence to support the fact.” The 2 nonmoving party may not defeat a properly supported motion with mere 3 allegations or denials in the pleadings, Liberty Lobby, 477 U.S. at 248, or by 4 providing a mere “scintilla of evidence[,]” id. at 252. 5 Although courts generally must view the facts and justifiable inferences in 6 favor of the nonmoving party, id., courts have more leeway when the case will not 7 be sent to a jury: 8 9 10 11 12 [W]here the ultimate fact in dispute is destined for decision by the court rather than by a jury, there is no reason why the court and the parties should go through the motions of a trial if the court will eventually end up deciding on the same record. However, just as the procedural shortcut must not be disfavored, courts must not rush to dispose summarily of cases—especially novel, complex, or otherwise difficult cases of public importance—unless it is clear that more complete factual development could not possibly alter the outcome and that the credibility of the witnesses’ statements or testimony is not at issue. 13 TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc., 913 F.2d 676, 684-85 (9th 14 Cir. 1990). 15 16 DISCUSSION Plaintiff’s Motion for Summary Judgment (ECF No. 14) seeks redress under 17 the Administrative Procedures Act (APA). Plaintiff asserts: (1) Defendants 18 violated the procedural requirements of the National Environmental Policy Act 19 (NEPA) in constructing the CPL, reasoning NEPA does not have a “waiver” for 20 emergency actions and the Forest Service did not seek “alternative arrangements” ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 5 1 as is required for emergency actions; and (2) even if 36 C.F.R. § 220.4(b)—the 2 regulation purporting to allow the Forest Service to take emergency actions— 3 satisfies the “alternative arrangement” requirement under NEPA, the Forest 4 Service did not follow the procedural requirements of said regulation. ECF No. 14 5 at 2-3. Plaintiff does not raise any specific complaint about the propriety of the 6 CPL otherwise, such as whether the decision to construct the CPL was arbitrary. 2 As discussed below, the Forest Service satisfied NEPA, which allows for 7 8 “alternative arrangements” in cases of emergencies, because 36 C.F.R. § 220.4(b) 9 fulfills the “alternative arrangement” requirement and the Forest Service complied 10 with the required procedures. Accordingly, Defendants are entitled to summary 11 judgment. 12 I. 36 C.F.R. § 220.4(b) Complies with NEPA Plaintiff’s argument that Defendants violated the procedural requirements of 13 14 NEPA in constructing the CPL is two-fold: (1) Plaintiff argues there is no 15 exception for emergencies; and (2) even if there is an exception, the Forest Service 16 17 18 2 Defendant argues the case is moot and barred by the statute of limitations. 19 The Court need not address these issues because it is granting Defendants’ Motion 20 for Summary Judgment on other grounds. ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 6 1 failed to pursue “alternative arrangements” as required by regulation. Plaintiff’s 2 arguments fail. NEPA requires all agencies of the Federal Government to consider the 3 4 environmental impact and file public reports relaying such before taking major 5 federal actions significantly affecting the quality of the human environment “to the 6 fullest extent possible[.]” 42 U.S.C. § 4332. When the Government conducts an activity, “NEPA itself does not mandate particular results.” Instead, NEPA imposes only procedural requirements to “ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” 7 8 9 10 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 23 (2008) (internal citations 11 omitted; bracket in original). According to the Supreme Court: NEPA has twin aims. First, it “places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.” Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process. Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns over other appropriate considerations. Rather, it required only that the agency take a “hard look” at the environmental consequences before taking a major action. The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious. 12 13 14 15 16 17 18 Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97–98 19 (1983) (internal citations omitted). 20 // ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 7 1 A. NEPA allows for “alternative arrangements” in cases of emergency 2 Plaintiff argues: “Just as NEPA contains no national security exception, it 3 also does not waive ‘emergency’ federal action[s].” ECF No. 14 at 11-12 (citing 4 San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1035 (9th Cir. 2006)). 5 However, even if not characterized as a waiver, NEPA allows an agency to make 6 alternative arrangements in emergency situations without complying with the 7 ordinary, burdensome reporting requirements. “The Council of Environmental Quality (CEQ), established by NEPA with 8 9 authority to issue regulations interpreting it, has promulgated regulations to guide 10 federal agencies in determining what actions are subject to that statutory 11 requirement.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004). 12 Pertinent to this case, CEQ promulgated the following regulation allowing for 13 agencies to make alternative arrangements when facing an emergency: Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. 14 15 16 17 18 40 C.F.R. § 1506.11. “CEQ’s interpretation of NEPA is entitled to substantial 19 deference.” Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). 20 // ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 8 Plaintiff does not directly challenge the propriety of the regulation3, and there 1 2 is nothing to suggest 40 C.F.R. § 1506.11 is invalid or ultra vires. Rather, the 3 regulation puts substance to the notion that it may not be possible to fully comply 4 with NEPA, as NEPA contemplates. Compare 42 U.S.C. § 4332 (mandate to 5 comply with NEPA “to the fullest extent possible”), with 40 C.F.R. § 1506.11 6 (specifically recognizing “emergency situations” may “make it necessary to take 7 an action . . . without observing the provision . . . .”). This aligns with common 8 sense—complying with burdensome reporting in the face of an emergency is 9 generally not feasible or prudent. See https://energy.gov/lpo/nepa-faqs (“The 10 average timeline for an environmental assessment is generally six to nine months, 11 and for an environmental impact statement around 18-24 months.”). 12 B. 36 C.F.R. § 220.4(b) fulfills “alternative arrangement” requirement 13 Plaintiff recognizes an agency may follow “alternative arrangements” in 14 emergency situations, but complains that “the Forest Service did not avail itself of 15 that process here.” ECF No. 14 at 8. The Forest Service argues 36 C.F.R. § 16 220.4(b) fulfills the alternative arrangement requirement. The Forest Service is 17 18 3 Plaintiff recognizes “NEPA’s implementing regulation[], 40 CFR § 1506.11, 19 [allows] for ‘alternative arrangements’ for agency actions taken in response to 20 emergencies[.]” ECF No. 14 at 8. ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 9 1 correct. The relevant portion of the regulation states: 2 3 4 5 6 7 8 (b) Emergency responses. When the responsible official determines that an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis and any required documentation in accordance with the provisions in §§ 220.5, 220.6, and 220.7 of this part, then the following provisions apply. (1) The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources. When taking such actions, the responsible official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practical. 9 36 C.F.R. § 220.4(b)(1). The Forest Service must otherwise consult with the CEQ 10 for any action not described in paragraph (b)(1). 36 C.F.R. § 220.4(b)(2)-(3). 11 Of special import, the CEQ formally approved 36 C.F.R. § 220.4(b) as 12 complying with NEPA. ECF No. 22 at 23; see R6330 (CEQ formally 13 acknowledging 36 C.F.R. § 220.4 complies with NEPA). NEPA established the 14 CEQ in part, “to review and appraise the various programs and activities of the 15 Federal Government . . . for the purpose of determining the extent to which such 16 programs and activities are contributing to the achievement of [NEPA’s 17 policies] . . . .” 42 U.S.C. § 4344. “CEQ’s interpretation of NEPA is entitled to 18 19 20 ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 10 1 substantial deference.” 4 Andrus v. Sierra Club, 442 U.S. at 347. Plaintiff argues 5 that “CEQ cannot ‘grant broad-sweeping exceptions to the 2 3 EIS process for routine agency activity[,]’” reasoning that doing so “directly 4 conflicts and subverts NEPA’s directive that agencies comply with their NEPA 5 duties ‘to the fullest extent possible.’” ECF No. 24 at 7-8 (quoting Nat. Res. Def. 6 Council v. Winter, 527 F.Supp.2d 1216, 1231 (C.D. Cal. 2008)). First, contrary to Plaintiff’s contentions, there is nothing routine—i.e. there 7 8 is no regular or repeated procedure—about fighting individual fires that create an 9 emergency situation, as each fire is accompanied by its own unique complexities 10 and dangers. This is much different than in Winter, where the underlying action 11 was a routine military training exercise planned in advance. Nat. Res. Def. Council 12 v. Winter, 527 F. Supp. 2d at 1228. Importantly, the regulation does not exempt 13 non-emergency wildfire prevention actions, and the regulation is limited to actions 14 necessary to protect life, property, and important resources. 36 C.F.R. § 15 220.4(b)(1). 16 17 4 Plaintiff argues the Court should not give the CEQ letter deference. ECF 18 No. 24 at 9. Irrespective, the Court agrees with the conclusion in the letter. 19 5 Plaintiff’s argument references 40 C.F.R. § 1506.11, but the argument is 20 directed toward 36 C.F.R. §220.4(b). See ECF No. 24 at 7-9. ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 11 1 Second, the procedures implemented under 40 C.F.R. § 1506.11 and 36 2 C.F.R. § 220.4(b) do not subvert NEPA’s directive that all agencies comply with 3 NEPA “to the fullest extent possible.” Importantly, the regulations only apply in 4 emergency situations—exigent circumstances make compliance not possible or 5 feasible so the regulations compliment, rather than contradict, NEPA. Further, the 6 purpose of NEPA is to require a “hard look” 6 at the environmental impact. 36 7 C.F.R. § 220.4(b) complies with this by requiring—even for an emergency—“the 8 responsible official [to] take into account the probable environmental 9 consequences of the emergency action and mitigate foreseeable adverse 10 environmental effects to the extent practical.” 36 C.F.R. § 220.4(b). Moreover, 36 C.F.R. § 220.4(b) complies with the bounds established under 11 12 40 C.F.R. § 1506.11, which limits the use of “alternative arrangements” to the 13 “actions necessary to control the immediate impacts of the emergency.” 40 C.F.R. 14 § 1506.11. The Forest Service regulation falls neatly within this boundary because 15 officials may only “take actions necessary to control the immediate impacts of the 16 17 6 In reviewing NEPA compliance, the “court’s role is to ensure that the 18 agency has taken a ‘hard look’ at environmental consequences.” Columbia Basin 19 Land Prot. Ass’n v. Schlesinger, 643 F.2d 585, 592 (9th Cir. 1981) (quoting Kleppe 20 v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 12 1 emergency and are urgently needed to mitigate harm to life, property, or important 2 natural or cultural resources . . . .” 36 C.F.R. § 220.4(b). Any other action requires 3 the Forest Service to go through the CEQ. See 36 C.F.R. § 220.4(b)(2)-(3). In sum, 36 C.F.R. § 220.4(b) is a prospective, successful attempt to delineate 4 5 the alternative arrangements required to comply with NEPA. Notably, this is not 6 the only one of its kind, despite Plaintiff’s contention otherwise. 7 7 II. Forest Service complied with 36 C.F.R. § 220.4 8 Under 36 C.F.R. § 220.4(b), the Forest Service may circumvent the 9 traditional NEPA process if: (1) a “responsible official” determines “an emergency 10 exists that makes it necessary to take urgently needed actions before preparing a 11 NEPA analysis[,]” and (2) the action is “necessary to control the immediate 12 impacts of the emergency and are urgently needed to mitigate harm to life, 13 property, or important natural or cultural resources[. ]” When taking such actions, 14 the “responsible official [must] take into account the probable environmental 15 16 17 7 See, e.g., 33 C.F.R. § 230.8 (U.S. Army Corps of Engineers), 43 C.F.R. 18 § 46.150 (U.S. Department of the Interior); 7 C.F.R. § 1970.18 (Rural Business 19 Cooperative Service, the Rural Utility Services, and the Rural Housing Service, 20 and 32 C.F.R. § 989.34 (U.S. Air Force). ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 13 1 consequences of the emergency action and mitigate foreseeable adverse 2 environmental effects to the extent practical.” 36 C.F.R. § 220.4(b). Plaintiff argues that the Forest Service did not comply with 36 C.F.R. 3 4 § 220.4(b) because there was no declaration of an emergency and fires do not 5 create emergencies. ECF No. 14 at 14-17. Plaintiff does not otherwise challenge 6 the Forest Service’s compliance with 36 C.F.R. § 220.4(b). 8 Defendants have demonstrated that the responsible official9 determined an 7 8 emergency existed. ECF No. 22 at 11 (citing ECF No. 22-1). Defendants assert9 and support with an uncontested affidavit—that: 10 The Forest Service’s responsible official appropriately determined that an emergency existed requiring urgently needed action. The Forest Supervisor, Michael R. Williams, was the responsible official who determined that the severity, location, and forecasted growth of the fire constituted an emergency that made it necessary to take urgently needed action. 11 12 13 14 8 Plaintiff’s complaint focuses on the procedure, not the substance, required 15 for constructing the CPL. ECF No. 24 at 11 (“While there are substantial 16 questions that could be raised about the wisdom and credibility of the Forest 17 Service’s CPL logging decision . . . those matters [are] not at issue in this 18 litigation.”). 19 9 The responsible official is “[t]he Agency employee who has the authority to 20 make and implement a decision on a proposed action.” 36 C.F.R. § 220.3. ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 14 1 ECF No 22 at 11. Plaintiff has not rebutted this contention, but merely 2 complains—without citations—that the declaration is insufficient since the 3 determination was not in the administrative record. See ECF No. 24. This bare 4 complaint, without citation, is insufficient to question Defendant’s assertion. 5 Liberty Lobby, 477 U.S. at 248 (the nonmoving party may not defeat a properly 6 supported motion with mere allegations or denials in the pleadings). Plaintiff also argues that a wildfire in Central and Eastern Washington does 7 8 not fall under the “common sense, dictionary definition of emergency.” ECF No. 9 14 at 3. Plaintiff reasons that such fires are certain and are thus not unforeseen. 10 ECF No. 14 at 14. Plaintiff’s argument that a wildfire is not an emergency is 11 without merit and contrary to common sense. Just because wildfires are common 12 and their general existence is foreseeable, the danger created by any specific 13 wildfire is not so foreseeable and can create an emergency situation with little or 14 no forewarning. For example, in this case, the Wolverine Fire was started by 15 lightning and spread quickly. The fire moved as fast as three miles per day, was 16 threatening several communities, and had breached two containment lines. This 17 clearly constitutes an emergency. 18 III. Proposed Amicus Curiae Brief 19 The Court has broad discretion to grant or refuse a prospective amicus 20 participation. See Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 15 1 abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Amicus 2 may be either impartial individuals or interested parties. See Funbus Sys., Inc. v. 3 Cal. Pub. Utils. Comm’n, 801 F.2d 1120, 1125 (9th Cir. 1986). In deciding 4 whether to grant leave to file an amicus brief, courts should consider whether the 5 briefing “supplement[s] the efforts of counsel, and draw[s] the court’s attention to 6 law that escaped consideration.” Miller-Wohl Co., Inc. v. Comm’r of Labor & 7 Indus. Mont., 694 F.2d 203, 204 (9th Cir. 1982). “An amicus brief should 8 normally be allowed when . . . the amicus has an interest in some other case that 9 may be affected by the decision in the present case, or when the amicus has unique 10 information or perspective that can help the court beyond the help that the lawyers 11 for the parties are able to provide. . . . Otherwise, leave to file an amicus curiae 12 brief should be denied.” Cmty. Ass’n for Restoration of Env’t (CARE) v. DeRuyter 13 Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999) (internal citations 14 omitted). 15 Lake Wenatchee Fire & Rescue’s brief and accompanying declaration offer 16 no additional legal, or other substantive information or perspective that has not 17 already been represented to the Court in this matter of administrative review. As 18 such, while the Court appreciates the position represented by the Lake Wenatchee 19 Fire & Rescue, that position is fully represented in Defendants’ briefing, and the 20 motion for leave to file is denied. ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 16 1 2 CONCLUSION Defendants have demonstrated there is no genuine issue of material fact and 3 Plaintiff’s claim fails as a matter of law. 4 ACCORDINGLY, IT IS HEREBY ORDERED: 5 1. Defendants’ Motion for Summary Judgment (ECF No. 22) is GRANTED. 6 7 2. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. 8 3. Plaintiff’s Motion for Judicial Notice (ECF No. 17) is DENIED AS MOOT. 9 10 11 12 4. Lake Wenatchee Fire & Rescue’s Motion for Leave to File Amicus Curiae Brief (ECF No. 26) is DENIED. The District Court Executive is hereby directed to enter this Order and 13 Judgment accordingly, furnish copies to counsel, and CLOSE the file. 14 DATED July 11, 2017. 15 16 THOMAS O. RICE Chief United States District Judge 17 18 19 20 ORDER GRANTING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT ~ 17
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