Firebaugh Canal Co, et al v. USA, et al

Filing 880

Defendant Westlands Water District's Application For an ORDER Shortening Time to Hear Motion Regarding the December 2009 Scheduling Order and Provision of Drainage Within Westlands, signed by Judge Oliver W. Wanger on 6/16/2011. ( 875 Motion to Shorten Time GRANTED. 876 MOTION Regarding the December 2009 Scheduling Order and Provision of Drainage Within Westlands set for hearing 6/30/2011 at 12:00PM. Any response to be filed by 5:00PM on 6/23/2011. Any reply shall be filed by 5:00PM on 6/27/2011.)(Gaumnitz, R)

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DANIEL J. O’HANLON, State Bar No. 122380
ANDREW P. TAURIAINEN, State Bar No. 214837
DANIELLE R. TEETERS, State Bar No. 210056
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
400 Capitol Mall, 27th Floor
Sacramento, CA 95814-4416
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant WESTLANDS WATER
DISTRICT

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FIREBAUGH CANAL WATER
DISTRICT and CENTRAL CALIFORNIA
IRRIGATION DISTRICT,

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CONSOLIDATED WITH
1:91-cv-00048 OWW DLB

Plaintiffs,

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CASE NO. 1:88-cv-00634 OWW DLB

DEFENDANT WESTLANDS WATER
DISTRICT’S APPLICATION FOR AN
ORDER SHORTENING TIME TO HEAR
MOTION REGARDING THE
DECEMBER 2009 SCHEDULING ORDER
AND PROVISION OF DRAINAGE
WITHIN WESTLANDS

v.
UNITED STATES OF AMERICA; et al.,

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Defendants.

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SUMNER PECK RANCH, INC., et al.,
Plaintiffs,

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ORDER SHORTENING TIME

v.

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DECLARATION OF ANDREW P.
TAURIAINEN

BUREAU OF RECLAMATION, et al.,
Defendants.

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APPLICATION FOR ORDER SHORTENING TIME

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Pursuant to Local Civil Rule 144(e), Defendant Westlands Water District (“Westlands)

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respectfully applies for an order shortening the time to hear its Motion Regarding the December

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2009 Scheduling Order and Provision of Drainage within Westlands, filed concurrently. The

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undersigned contacted counsel for all parties on June 14, 2011, to obtain their position on this
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Defendant Westlands’ Application For Order Shortening Time
To Hear Motion Re December 2009 Scheduling Order and
Provision of Drainage Within Westlands

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application to shorten time. Counsel for Plaintiffs have indicated that they would prefer a hearing

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during the afternoon of June 30, but have not expressly indicated whether the Plaintiffs object to

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this Application. The Federal Defendants, Environmental Intervenors and the remaining parties

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have each indicated that they do not object to this Application.
Westlands requests that the Court enter an Order in response to this Application providing

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that any responses to the Motion Regarding the December 2009 Scheduling Order be submitted

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by 5:00 p.m. on June 23, 2011, that any reply in support of the Motion Regarding the December

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2009 Scheduling Order to due by 5:00 p.m. on June 27, 2011, and that the Motion Regarding the

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December 2009 Scheduling Order be heard at noon on June 30, 2011, or as soon thereafter as the

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Court is available to hear it.

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This Court has authority to shorten the time to hear the Motion Regarding the December

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2009 Scheduling Order. Rule 6(c) of the Federal Rules of Civil Procedure sets forth the time for

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hearings on noticed motions “except[ ] . . . when a court order – which a party may, for good

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cause, apply for ex parte – sets a different time.” Fed. R. Civ. P. 6(c)(1); see also United States v.

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Fitch, 472 F.2d 548, 549 n.5 (9th Cir. 1973) (citing former Rule 6(c) and explaining that this rule

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“allows the district court discretion to shorten time”). The Local Civil Rules for the U.S. District

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Court for the Eastern District of California recognize this authority, and provide that “applications

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to shorten time shall set forth by affidavit of counsel the circumstances claimed to justify the

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issuance of an order shortening time.” Local R. 144(e).
Good cause exists for this application. The proposed modification of the Control

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Schedule described in the concurrent Motion calls for the Federal Defendants to undertake

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feasibility studies regarding Westlands’ proposal to implement drainage first on the Westlands

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central subunit. These studies will require approximately 120 days beyond the Control Schedule

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incorporated into the Court’s December 23, 2009, Order Following Scheduling Conference

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(“Scheduling Order”), Doc. 758. Westlands desires that the Federal Defendants commence on

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the necessary feasibility studies as soon as possible. As described in the Memorandum in Support

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of the Motion filed concurrently, a stipulated modification of the Control Schedule is not

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possible, and a noticed hearing is required to either clarify the Scheduling Order or to obtain the
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Defendant Westlands’ Application For Order Shortening Time
To Hear Motion Re December 2009 Scheduling Order and
Provision of Drainage Within Westlands

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Court’s approval of the 120-day modification. In addition, and perhaps most significantly,

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counsel for the Federal Defendants will be unavailable for most of July.
Westlands thus respectfully requests that the Court exercise the authority granted to it by

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Fed. R. Civ. P. 6(c)(1) and Local Civil Rule 144(e) here and shorten the time by which the

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Motion Regarding the December 2009 Scheduling Order and Provision of Drainage will be

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briefed.

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Dated: June 15, 2011

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Respectfully submitted,
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation

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By
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/s/ Daniel J. O’Hanlon
DANIEL J. O’HANLON
Attorneys for Defendant Westlands Water District

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Defendant Westlands’ Application For Order Shortening Time
To Hear Motion Re December 2009 Scheduling Order and
Provision of Drainage Within Westlands

DECLARATION OF ANDREW P. TAURIAINEN

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I, Andrew P. Tauriainen, declare as follows:

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I am an associate in the firm of Kronick, Moskovitz, Tiedemann & Girard, counsel

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of record for Defendant Westlands Water District. I make this declaration pursuant to Local Rule

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144(e).
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Concurrent with this application, Westlands has moved to clarify the Court’s

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December 23, 2009 Order Following Scheduling Conference in light of a proposed modification

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to the Control Schedule incorporated into that Order. The proposed modification calls for the

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Federal Defendants to undertake feasibility studies regarding Westlands’ proposal to implement

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drainage first on the Westlands central subunit. These studies will require approximately 120

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days beyond the Control Schedule incorporated into the Court’s December 23, 2009, Order

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Following Scheduling Conference, Doc. 758.
3.

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Westlands desires that the Federal Defendants commence on the necessary

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feasibility studies as soon as possible. Based on previous statements made by the Plaintiffs, a

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stipulated modification of the Control Schedule is not possible, and a noticed hearing is required

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to either clarify the Scheduling Order or to obtain the Court’s approval of the 120-day

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modification.
4.

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The Court and the parties have been informed that counsel for the Federal

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Defendants will be unavailable for most of July. (See Doc. 874 (describing unavailability of

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counsel).)

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On June 14, 2011, I sent counsel for the Federal Defendants, Plaintiffs, remaining

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District Defendants, and Environmental Intervenors an electronic mail at the email addresses of

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record notifying them of Westlands’ intent to seek an ex parte application to shorten time in this

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Court. A copy of my electronic mail correspondence is attached hereto. As of the close of

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business on June 14, 2011, counsel for Plaintiffs have not notified me of their position on this ex

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parte application, although they did indicate their preference for a hearing during the afternoon of

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June 30. Counsel for the Federal Defendants, the Environmental Intervenors and the remaining

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parties have each notified me that they do not oppose this ex parte application.
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Defendant Westlands’ Application For Order Shortening Time
To Hear Motion Re December 2009 Scheduling Order and
Provision of Drainage Within Westlands

I declare under penalty of perjury under the laws of the United States of America that the

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foregoing is true and correct, and that this declaration was executed on June 15, 2011, at

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Sacramento, California.

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/s/ Andrew P. Tauriainen
ANDREW P. TAURIAINEN

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Defendant Westlands’ Application For Order Shortening Time
To Hear Motion Re December 2009 Scheduling Order and
Provision of Drainage Within Westlands

ORDER SHORTENING TIME

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Upon application of Westlands Water District, and good cause appearing, IT IS

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HEREBY ORDERED that the time for hearing Westlands Water District’s Motion Regarding

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the December 2009 Scheduling Order and Provision of Drainage within Westlands is hereby

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shortened, and the hearing on said motion shall be on June 30, 2011, at 12:00p.m. Any response

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to that motion shall be filed by 5:00 p.m. on June 23, 2011. Any reply brief shall be filed by

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5:00 p.m. on June 27, 2011.

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IT IS SO ORDERED.

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DATED: June 16, 2011

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/s/ OLIVER W. WANGER
United States District Judge

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Defendant Westlands’ Application For Order Shortening Time
To Hear Motion Re December 2009 Scheduling Order and
Provision of Drainage Within Westlands