Downwind LLC et al v. United States Department of Energy et al

Filing 57

ORDER: 56 conditional request for a prompt hearing on record issues noted. 50 Motion to make various corrections and supplement the voluminous record is granted. Corrected and supplemental materials due in electronic form by 6/15/2017 and in pape r form by 6/23/2017. 51 Motion is denied. The Court's 45 Amended Final Scheduling Order is clarified: Downwind's motion for judgment and opening brief are due by 7/17/2017; Defendants' and Intervenor's responses and cross moti ons are due 30 days afterwards; 30 days later Downwind's reply and responses to any cross motions are due; and Defendants and the Intervenor have 15 days thereafter to reply on the cross motions. Signed by Judge D. P. Marshall Jr. on 6/8/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
DOWNWIND, LLC and GOLDEN
BRIDGE, LLC

v.

PLAINTIFFS

No. 3:16-cv-207-DPM

UNITED STATES DEPARTMENT
OF ENERGY; RICK PERRY, in his
official capacity as Secretary of the
United States Department of Energy*;
SOUTHWESTERN POWER ADMINISTRATION;
and SCOTT CARPENTER, in his official
capacity as Administrator of the Southwestern
Power Administration

DEFENDANTS

PLAINS AND EASTERN CLEAN
LINE HOLDINGS, LLC

INTERVENOR

ORDER
Some administrative record issues need resolving. Intervenor Clean
Line's conditional request for a prompt hearing on record issues, NQ 56, is
noted. But the Court doesn't need oral argument on these issues.
1. The DOE and SWP A Defendants' unopposed motion, NQ 50, to make
various corrections and supplement the voluminous record is granted. Use
the procedures approved before.

NQ 29.

Corrected and supplemental

*
The Court directs the Clerk to update the docket.

materials due in electronic form by 15 June 2017 and in paper form by 23 June
2017. Please work with the Clerk of the Court on this update.
2. Downwind' s motion to compel completion and supplementation of
the record, Ng 51, is denied. Downwind has, commendably, withdrawn its
request about the Section 1222 materials. Ng 55 at 2-3. But Downwind hasn't
offered clear evidence that overcomes the presumption of regularity that
cloaks the lodged record. Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 415 (1971). (Defendants' record cleanup shows a good faith effort to
fix mistakes at the margin, not bad faith or a rotten record.)

In the

circumstances presented, the Court sees nothing to justify discovery or adding
post-decision materials on the constitutional claim. Voyageurs National Park
Association v. Norton, 381 F.3d 759, 766 (8th Cir. 2004); Newton County Wildlife
Association v. Rogers, 141F.3d803, 807 (8th Cir. 1998). DOE and SWPA don't

have to include deliberative-process documents; so a privilege log isn't
required in the ordinary case, and nothing of record suggests any
extraordinary circumstances that would justify requiring one here. E.g., In re
Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 156

F.3d 1279, 1279-80 (D.C. Cir. 1998).

-2-

3. There is a mistake in the staging laid out in the Court's Amended
Final Scheduling Order, NQ 45 at 2. To clarify:

•

Downwind's motion for judgment and opening brief are due by
17 July 2017;

•

Defendants' and Intervenor's responses and cross motions are
due thirty days after Downwind' s filing;

•

Thirty days later, Downwind' s reply and responses to any cross
motions are due; and

•

Defendants and the Intervenor have fifteen days thereafter to
reply on the cross motions.

If we can all keep this schedule, the briefing should be complete by the end
of September. NQ 45 is amended to clarify the schedule.
So Ordered.

Jr.

D .P. Marshall
United States District Judge

-3-