Black Warrior Riverkeeper Inc. et al v. U.S Army Corps of Engineers et al

Filing 59

MEMORANDUM OPINION AND ORDER re 49 MOTION for Reconsideration re 48 Order filed by Black Warrior Riverkeeper Inc., and 47 MOTION for Expedited Briefing Schedule on the Motion for Summary Judgment; dates and guidelines setout within; to the extent this order is inconsistent with prior orders of this court, this order SUPERCEDES those orders. Signed by Judge William M Acker, Jr on 3/5/14. (SAC )

FILED
2014 Mar-05 PM 01:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BLACK WARRIOR RIVERKEEPER,
INC., et al.,

}
}
}
Plaintiffs,
}
}
v.
}
}
U.S. ARMY CORPS OF ENGINEERS, }
et al.,
}
}
Defendants,
}
}
THE ALABAMA COAL ASSOCIATION, }
et al.,
}
}
Intervenor-Defendants.
}

CIVIL ACTION NO.
2:13-CV-2136-WMA

MEMORANDUM OPINION AND ORDER
After this court denied plaintiffs’ motion for a preliminary
injunction, plaintiffs, instead of appealing that denial to the
Eleventh Circuit, immediately filed a motion for summary judgment
in this court and a request for its expedited treatment.

The

reason asserted for expedited treatment is the same irreparable
harm being suffered by plaintiffs that was a ground for plaintiffs’
motion for preliminary injunction. The time for appealing from the
denial of the preliminary injunction has not expired so that the
effect, if any, of a timely appeal by plaintiffs on plaintiffs’
new, alternative, strategy is, as of now, a matter of speculation.
On March 3, 2014, the court conducted an oral hearing on
plaintiffs’ request for an expedited schedule, and the objections
to that request interposed by intervenor-defendants.

Intervenor-

defendants argued vociferously that it would be unfair in the
extreme to require them to respond to plaintiffs’ motion for
summary judgment on a drastically foreshortened schedule when there
are thousands of documents to be examined.

Plaintiffs argued that

all of the pertinent evidentiary material is readily available to
intervenor-defendants and there is no need for an examination of
documents

that

might

be

relevant

only

to

complaint, which plaintiffs have withdrawn.

Count

III

of

the

The court finds it

impossible to determine, in short order, how important discovery
might be to intervenor-defendants in defending against plaintiffs’
motion for summary judgment.
In

a

helpful

mood,

government-defendants

at

the

hearing

suggested that they could both reply to plaintiffs’ motion for
summary judgment, and file their cross-motion to dismiss and/or for
summary

judgment

discovery.

within

a

month,

all

without

any

need

for

Intervenor-defendants insisted that their interests go

beyond the interests of the government-defendants, but agreed that
if

a

dispositive

motion

filed

by

government-defendants

were

granted, there would be no need for discovery, or, for that matter,
no need for any further proceedings.

Exercising the considerable

discretion that this court enjoys in peculiar circumstances like
these, the court hereby ORDERS as follows:
1.
file

a

On or before April 2, 2014, government-defendants shall
motion

to

dismiss

and/or

2

for

summary

judgment

with

accompanying brief with references to all relevant evidentiary
material.
Within

2.

seven

(7)

calendar

days

after

government-

defendants file their motion, intervenor-defendants shall, if they
wish to do so, file an amicus brief in support of governmentdefendants’ motion.

They shall also, if they wish to do so, file

a motion to dismiss and/or for summary judgment limited to their
defense

of

laches,

with

an

accompanying

brief

and

relevant

evidence.
3.

If intervenor-defendants desire to challenge this court’s

subject-matter jurisdiction, they shall on or before March 19,
2014, file a motion to reconsider this court’s earlier finding that
it has subject-matter jurisdiction and include their subject-matter
jurisdiction defense in their motion to dismiss and/or for summary
judgment filed as ordered in paragraph 2 above.

If they decide to

challenge subject-matter jurisdiction, they are GRANTED leave to
depose no more than four of plaintiffs’ principals, the inquiry
being limited to the issue of standing.
completed by March 27, 2014.

Said depositions shall be

Intervenor-defendants shall file a

brief in support of their motion to dismiss and/or for summary
judgment with accompanying evidentiary materials.

By doing so,

intervenor-defendants will not have waived their right to file a
subsequent

motion

for

summary

judgment,

plaintiffs’ motion for summary judgment.
3

or

a

response

to

4.

Within

seven

(7)

calendar

days

after

government-

defendants and intervenor-defendants have filed their motions, and
briefs, plaintiffs shall respond.
5.

Within

seven

(7)

calendar

days

after

plaintiffs’

responding briefs are filed, government-defendants and intervenordefendants shall respond.
6.

After the foregoing schedule has been completed, the

court will take defendants’ dispositive motions under submission,
or will set them for oral argument.
7.

Only if defendants’ dispositive motions are denied will

the court establish a schedule for the disposition of the issues
that will remain.
8.

To the extent this order is inconsistent with prior

orders of this court, this order SUPERCEDES those orders.

To the

extent this order is not responsive to plaintiffs’ request for
reconsideration and expedited scheduling, plaintiffs’ request is
DENIED.
DONE this 5th day of March, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

4