PLAINTIFFS’ MOTION FOR RECONSIDERATION OF

OPINION AND ORDER DOC. 368

JULIA A. OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com

Wild Earth Advocates

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825 

PHILIP L. GREGORY (pro hac vice)

pgregory@gregorylawgroup.com 

Gregory Law Group 

1250 Godetia Drive

Redwood City, CA 94062

Tel: (650) 278-2957

Attorneys for Plaintiffs

ANDREA K. RODGERS (OR Bar 041029)

Andrearodgers42@gmail.com

Law Offices of Andrea K. Rodgers

3026 NW Esplanade

Seattle, WA 98117

Tel: (206) 696-2851

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KELSEY CASCADIA ROSE JULIANA; 

XIUHTEZCATL TONATIUH M., through 

his Guardian Tamara Roske-Martinez; et al.,

Plaintiffs,

v.

The UNITED STATES OF AMERICA; et 

al., 

Defendants.

Case No.: 6:15-cv-01517-AA

PLAINTIFFS’ MOTION FOR 

RECONSIDERATION OF OPINION AND 

ORDER GRANTING IN PART AND 

DENYING IN PART PLAINTIFFS’ FIRST 

MOTION IN LIMINE SEEKING JUDICIAL 

NOTICE, DOC. 368.

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PLAINTIFFS’ MOTION FOR RECONSIDERATION OF

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INTRODUCTION

Plaintiffs hereby request the Court to reconsider, in part, its October 15, 2018 Opinion 

and Order Granting in Part and Denying in Part Plaintiffs’ Motion in Limine Seeking Judicial 

Notice of Federal Government Documents, Doc. 368 (“October 15 Order”). 

Parties may seek reconsideration of interlocutory orders “which adjudicate fewer than all 

of the claims” under Federal Rule of Civil Procedure 54(b), which allows the Court to revise 

such orders “at any time before the entry of a judgment adjudicating all the claims and all the 

parties’ rights and liabilities.” Fed. R. Civ. Proc. 54(b); Am. Rivers v. NOAA Fisheries, No. CV04-00061-RE, 2006 WL 1983178, at *2 (D. Or. July 14, 2006); see also City of Los Angeles, 

Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (“As long as a 

district court has jurisdiction over the case, then it possesses the inherent procedural power to 

reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.”)

(internal quotations and citation omitted). Motions for reconsideration under Rule 54(b) must be 

weighed against interests of finality but may be granted if “the movant makes a convincing 

showing that the court failed to consider material facts that were presented to the court before the 

court’s decision.” Am. Rivers, 2006 WL 1983178, at *2; Clark v. Hyman, No. 14-CV-04649-

YGR(PR), 2015 WL 9258122, at *3 (N.D. Cal. Dec. 18, 2015) (court granting motion for 

reconsideration upon acknowledging that it failed to consider document because it was an 

attachment to a filing submitted separately from the complaint)

Plaintiffs believe reconsideration is warranted because it appears that the Court did not 

consider Plaintiffs’ supplemental declarations describing Defendants’ post-filing changes in 

position on certain documents or additional source information supplied in attachments to 

Plaintiffs’ reply brief. The supplemental declarations were filed because Defendants changed 

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PLAINTIFFS’ MOTION FOR RECONSIDERATION OF

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their positions on certain documents after Plaintiffs filed their reply brief. See Supplemental 

Declaration of Andrea K. Rodgers (“First Supplemental Rodgers Declaration”), Doc. 334 ¶ 3; 

Second Supplemental Declaration of Andrea K. Rodgers (“Second Supplemental Rodgers 

Declaration”), Doc. 351 ¶ 2.

Plaintiffs believe that the Court did not consider these additional filings because the 

Court cited the number of objections set forth in Plaintiffs’ reply brief, rather than those set forth 

in Plaintiffs’ supplemental declarations. More specifically, the Court reported that: “Federal 

defendants do not object to the Court taking notice of the existence and authenticity of 286 of 

those documents. They offer specific objections to 42 of documents, while taking no position on 

the remaining 58.” October 15 Order at 1. These were the correct numbers as of Plaintiffs’ reply 

brief, Doc. 331 at 2, but do not reflect the changes Defendants made to their position as reported 

in the First and Second Supplemental Rodgers Declarations. 

Plaintiffs therefore wish to direct the Court’s attention to certain additional information 

provided in appendices to the Reply and supplemental briefing that Plaintiffs believe warrant 

reconsideration of the Court’s decision not to take judicial notice of the authenticity of these 

documents.

I. Plaintiffs Believe this Court Should Reconsider Its Decision on the Following 

Documents as Appropriate for Judicial Notice

A. National Energy Strategy: Powerful Ideas for America, U.S. Dep’t of Energy (Feb. 

1991), Motion in Limine Exh. 20, Doc. 299-209. 

The following source information was provided by Plaintiffs in the Motion in Limine

Seeking Judicial Notice:

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Doc. 254-1 at 4.

In their response brief, Defendants objected to the Court taking judicial notice of this 

document on grounds of inadequate foundation. Doc. 327-1 at 3. Defendants elaborated on these 

objections in correspondence to Plaintiffs received after Plaintiffs had filed their reply brief. Doc.

334 ¶ 3. After receiving this correspondence from Defendants, Plaintiffs then provided the 

following additional source information for this document to the Court in the First Supplemental 

Rodgers Declaration:

 

Doc. 334-4 at 1.

As a result, Defendants changed their position from an objection to “no position.” See 

Doc. 351-1. This Court refused to take judicial notice of this document, seemingly based only on 

the initial source description provided to the Court. Doc. 368 at 6. Plaintiffs reiterate that judicial 

notice of this document is appropriate under Federal Rule of Evidence 201 because it is a public 

record, an appropriate and frequent subject for judicial notice. See, e.g., Doc. 331 at 1 (citing 

Cachil Dehe Band of Wintun Indians of the Colusa Indian Comm’y v. California, 547 F.3d 962, 

968 n.4 (9th Cir. 2008) (taking judicial notice of “undisputed matters of public record.”)); Doc. 

254 at 3 (citing Coppola v. Smith, 935 F.Supp.2d 993, 1013 (E.D. Cal. 2013) (taking judicial 

notice of EPA documents containing test results of groundwater)). Plaintiffs request that this 

Court reconsider taking judicial notice of this document in light of the additional information 

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provided for this document in response to Defendants’ communication detailing their objections

after Plaintiffs filed their Reply. 

B. Testimony of Timothy E. Wirth at Second Conference of the Parties Framework 

Convention on Climate Change (July 17, 1996), Motion in Limine Exh. 130, Doc. 270-

92.

The following source information was provided by Plaintiffs in the Motion in Limine

Seeking Judicial Notice:

Doc. 254-1 at 31.

Based on this source information, in their response brief, Defendants objected on grounds 

of inadequate foundation to this Court taking judicial notice of this document. Appendix 1 to 

Defendants’ Response to Plaintiffs’ first Motion in Limine Seeking Judicial Notice, Doc. 327-1 

at 21. Plaintiffs provided additional source information for this document in the Reply:

Doc. 332-1 at 29.

After Plaintiffs filed their reply brief, Defendants then changed their position on this 

document from an objection to “no position.” Doc. 334-1. Plaintiffs reiterate that judicial notice 

of this document is appropriate under Federal Rule of Evidence 201 because it is a public record, 

an appropriate and frequent subject for judicial notice. See, e.g., Doc. 331 at 1 (citing Cachil 

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Dehe Band of Wintun Indians, 547 F.3d at 968 n.4); Doc. 254 at 3 (citing Coppola, 935 

F.Supp.2d at 1013). Plaintiffs request that this Court reconsider taking judicial notice of this 

document in light of the additional information that was provided for this document.

C. Address at the Future of Energy Global Summit, Sec. of Energy Rick Perry, Motion 

in Limine Exh. 100, Doc. 270-62.

The following source information was provided by Plaintiffs in the Motion in Limine

Seeking Judicial Notice for this document:

Doc. 254-1 at 23. 

Defendants objected to this document on grounds of inadequate foundation in their 

Response. Doc. 327-1 at 3. Plaintiffs then provided the following additional source information 

for this document in the Second Supplemental Rodgers Declaration:

 

 

Doc. 334-4 at 1. 

This Court declined to take judicial notice of this document, seemingly based only on the 

initial source description provided to the court. Doc. 368 at 6. Plaintiffs reiterate that judicial 

notice of this document is appropriate under Federal Rule of Evidence 201(b)(1) as a 

“publication[] introduced to indicate what was in the public realm at the time.” Doc. 331 at 9 

(citing Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 

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2010)) (internal quotations omitted); see also id. (citing Cty. of Santa Clara v. Trump, 275 F. 

Supp. 3d 1196, 1209 (N.D. Cal. 2017) (taking judicial notice of statements made by Attorney 

General Jeff Sessions’ statements in an op-ed)). Plaintiffs request that this Court reconsider 

taking judicial notice of this document in light of the additional information that was provided 

for this document to account for Defendants’ post-reply briefing communication detailing their 

objections.

D. Sources from the Internet Archive

Plaintiffs request reconsideration of judicial notice of two exhibits linked to the Internet 

Archive for disparate reasons. For one source, Exhibit 110, Plaintiffs submitted an alternate link 

to an archived version of the webpage in light of Defendants’ post-Reply objections. The 

following source information was originally provided by Plaintiffs in the Motion in Limine

Seeking Judicial Notice for this document:

Doc. 254-1 at 25.

Defendants objected to this document on grounds of inadequate foundation in their 

Response. Doc. 327-1 at 17. After receiving further information from Defendants on their 

objections after filing the Reply, Plaintiffs located an archived version of the webpage because 

this source was a webpage originally posted on whitehouse.gov but had since been removed. 

Plaintiffs provided the following additional source information for this document in the First 

Supplemental Rodgers Declaration:

 

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Doc. 334-4 at 1. 

This Court refused to take judicial notice of this document, seemingly based only on the 

initial source description provided to the Court. Doc. 368 at 6. Plaintiffs request that this Court 

reconsider taking judicial notice of this document in light of the additional information that was 

provided for this document to account for Defendants’ post-reply briefing communication 

detailing their objections. 

A second source from the Internet Archive, Motion in Limine Exhibit 3, appears to have 

been overlooked by the Court in its decision. The Court does not address Exhibit 3 beyond 

listing it as a document to which Defendants took “no position.” Doc. 368 at 3. This exhibit has 

consequently neither been granted nor denied judicial notice by this Court and Plaintiffs 

respectfully request that this Court reconsider its October 15 Order to address this. 

Plaintiffs believe reconsideration is warranted for both of these documents sourced from 

the Internet Archive because, as noted in Plaintiffs’ Reply:

District courts have routinely taken judicial notice of content from The Internet 

Archive pursuant to [Fed. R. Evid. 201(b)].” Under A Foot Plant, Co. v. Exterior 

Design, Inc., No. 6:14-CV-01371-AA, 2015 WL 1401697, at *2 (D. Or. Mar. 24,

2015) (Aiken, J.); Dzinesquare, Inc. v. Armano Luxury Alloys, Inc., No. 

CV1401918JVSJCGX, 2014 WL 12597154, at *3 (C.D. Cal. Dec. 22, 2014) 

(taking judicial notice of exhibits from “the Internet Archive, which is a ‘website 

that provides access to a digital library of Internet sites.’”); Tompkins v. 23andMe, 

Inc., No. 5:13-CV-05682-LHK, 2014 WL 2903752, at *1 (N.D. Cal. June 25, 

2014), aff’d, 840 F.3d 1016 (9th Cir. 2016) (taking “judicial notice of the Internet 

Archive (http://archive.org) version of 23andMe’s website as of November 20, 

2013, the full version of the website archived right before the FDA warning letter 

of November 22, 2013.”).

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Doc. 331 at 7. Plaintiffs respectfully request that this Court reconsider taking judicial notice of 

Exhibit 110 and to render a decision on Exhibit 3. 

E. Sources from the American Presidency Project (Doc. 299-198 and 299-200)

The following source information was provided by Plaintiffs in the Motion in Limine

Seeking Judicial Notice for these documents:

Doc. 254-1 at 3. 

Defendants took “no position” as to both of these documents in their Response. Doc. 327-

1 at 2. Plaintiffs provided this additional source information in their Reply: 

Doc. 332-1 at 24.

This additional source information explains that the link provided for these sources is to 

the American Presidency Project, “the leading source of presidential documents on the internet” 

and is hosted at the University of California, Santa Barbara. This Court took judicial notice of 

documents hosted on similar university-hosted databases, including the National Security 

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Archive hosted at George Washington University; the National Agricultural Law Center hosted 

at the University of Arkansas; and the Homeland Security Digital Library sponsored by the 

Naval Postgraduate School Center for Homeland Defense and Security. Further, official 

presidential documents are appropriate for judicial notice as “true and correct copies of 

documents reflecting official acts of the executive branch of the United States[.]” Doc. 331 at 4 

(citing Hague v. Wells Fargo Bank, N.A., No. C11-02366 TEH, 2011 WL 3360026, at *1 n.2 

(N.D. Cal. Aug. 2, 2011)). Based on Plaintiffs’ belief that the Court did not consider the 

additional source information provided in the Reply and the similarity of these sources to other 

sources recognized as suitable for judicial notice by this Court, Plaintiffs request the Court to 

reconsider taking judicial notice of these documents. 

F. Sources That Plaintiffs Have Located Online 

Noting this Court’s reluctance to take judicial notice of sources that “are not available on 

the internet at a reliable source,” Doc. 368 at 6, Plaintiffs have identified online versions of 

sources that they previously could not locate online and that the Court did not locate online in its 

own search. See Doc. 368 at 5–6 (taking judicial notice of documents where URL provided by 

Plaintiffs no longer worked but the Court was able to locate online). Plaintiffs request that this 

Court reconsider taking judicial notice of these documents in light of the fact that Plaintiffs have 

now been able to locate them online. The source information and links for these documents are

as follows:

MIL 

Exh. 

#

Title Docket 

#

Link

107 Statement of Donna R. 

Fitzpatrick, Hearing on the 

Energy Policy Implications of 

Global Warming, House 

Committee on Energy & 

270-69 https://heinonline.org/HOL/P?h=hein.cb

hear/enplcy0001&i=1.

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Commerce, Subcommittee on 

Energy & Power (Sept. 22, 

1988)

326 Report of the International 

Geophysical Year, Hearings 

Before the Subcommittee of the 

House Committee on 

Appropriations (Feb. 1959)

299-130 https://babel.hathitrust.org/cgi/pt?id=uc1

.31822011993052;view=1up;seq=11

Both of these documents are records of congressional testimony, a category of documents 

that courts regularly judicially notice. See, e.g., Doc. 331 at 8–9 (citing Oregon State Bar Prof’l 

Liab. Fund v. U.S. Dep’t of Health & Human Servs., No. 03:10-CV-1392-HZ, 2012 WL 

1071127, at *3 (D. Or. Mar. 29, 2012) (taking judicial notice of testimony to Congress); United 

States v. Choate, 576 F.2d 165, 207–08 (9th Cir. 1978) (same)). The link provided for Exhibit 

107 is to HeinOnline, a subscription-based online database of historical government documents 

that contains the entire Congressional Record and Federal Register.1 The link provided for 

Exhibit 326 is to HathiTrust, a source for documents this Court has already found “reasonably 

reliable” and appropriate for judicial notice. Doc. 368 at 4. Plaintiffs request that this Court 

reconsider taking judicial notice of Exhibits 107 and 326 in light of the versions Plaintiffs have 

located online. 

CONCLUSION

For the reasons set forth above, Plaintiffs believe this Court “failed to consider material 

facts that were presented to the court before the court’s decision,” Am. Rivers, 2006 WL 

1983178, at *2, and respectfully request that this Court reconsider taking judicial notice of the 

documents described above. 

Respectfully submitted this 2nd day of November, 

2018, 

 

1 See HeinOnline, https://heinonline.org/ (last visited Oct. 30, 2018). 

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PLAINTIFFS’ MOTION FOR RECONSIDERATION OF

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/s/ Julia A Olson 

JULIA A. OLSON (OR Bar 062230)

JuliaAOlson@gmail.com

Wild Earth Advocates

1216 Lincoln St.

Eugene, OR 97401

Tel: (415) 786-4825

ANDREA K. RODGERS (OR Bar 041029)

andrearodgers42@gmail.com

Law Offices of Andrea K. Rodgers

3026 NW Esplanade

Seattle, WA 98117

Tel: (206) 696-2851

PHILIP L. GREGORY (pro hac vice)

pgregory@gregorylawgroup.com

Gregory Law Group

1250 Godetia Drive

Redwood City, CA 94062

Tel: (650) 278-2957

Attorneys for Plaintiffs

Case 6:15-cv-01517-AA Document 415 Filed 11/02/18 Page 12 of 12