Natural Resources Defense Council et al v. Norton et al

Filing 1067

STIPULATION AND ORDER TO FILE A FIFTH SUPPLEMENTAL COMPLAINT signed by Chief Judge Lawrence J. O'Neill on February 17, 2017. (Munoz, I)

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COUNSEL IDENTIFICATION ON FINAL PAGE

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NATURAL RESOURCES DEFENSE
COUNCIL, et al.,

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Plaintiffs,

Case No. 1:05-cv-01207 LJO-EPG
STIPULATION AND ORDER TO FILE A
FIFTH SUPPLEMENTAL COMPLAINT

v.
SALLY JEWELL, in her official capacity
as Secretary of the Interior, et al.,
Defendants.

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SAN LUIS & DELTA MENDOTA
WATER AUTHORITY, et al.,
Defendants-Intervenors.
ANDERSON-COTTONWOOD
IRRIGATION DISTRICT, et al.,
Joined Parties.

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STIPULATION AND ORDER TO FILE A FIFTH
SUPPLEMENTAL COMPLAINT
CASE NO. 1:05-CV-01207 LJO-EPG

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RECITALS
WHEREAS, on October 20, 2016, the Court dismissed Plaintiffs’ Second Claim for Relief

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“on the ground that this Court lacks subject matter jurisdiction over the Second Claim for relief

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because certain allegations in the claim are moot and because Plaintiffs have failed to comply with

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the ESA’s 60-day notice requirement as to any non-moot allegations,” Doc. 1045 (“10/20/16

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Order”) at 25;

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WHEREAS, the Court has not yet issued a final ruling on motions filed on June 20, 2016

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by the Sacramento River Settlement Contractors and Federal Defendants to dismiss the Fifth and

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Sixth Claims for Relief (Doc. 1031 & 1032);

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WHEREAS, on November 14, 2016, Plaintiffs mailed to Defendants Secretary of Interior

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and Commissioner of Bureau of Reclamation a 60-day notice (“2016 Notice Letter”) asserting

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alleged violations of the Endangered Species Act, see Doc. 1055-11.

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WHEREAS, on January 19, 2017, Plaintiffs filed a Motion for Reconsideration or, in the
Alternative, Leave to Supplement the Complaint, see Doc. 1055;
WHEREAS, Plaintiffs’ alternative motion for leave seeks to supplement the complaint for

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the limited purpose of reviving the Second Claim as it pertains to Reclamation’s reliance on the

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2015 reinitiated consultation, and adding an allegation pertaining to the 2016 Notice Letter, see

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Docs. 1055-1 (proposed Fifth Supplemental Complaint), 1055-12 (redlined version of proposed

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Fifth Supplemental Complaint);

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WHEREAS, Plaintiffs acknowledge that the Court has ruled that the allegations in

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paragraphs 173 and 174 of the Fourth Supplemental Complaint pertaining to the 2005 Smelt

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OCAP Biological Opinion are moot, see 10/20/16 Order at 20, 25, and Plaintiffs confirm that their

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motion does not seek reconsideration of that ruling and that Paragraphs 173 and 174 are included

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in the proposed Fifth Supplemental Complaint for background informational purposes only;

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WHEREAS, Defendants oppose Plaintiffs’ motion for reconsideration but do not oppose

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Plaintiffs’ motion in the alternative for leave to file a Fifth Supplemental Complaint, subject to

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Plaintiffs’ acknowledgement and confirmation of the Court’s mootness ruling regarding

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paragraphs 173 and 174 of the Fourth Supplemental Complaint (now paragraphs 175 and 176 of
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STIPULATION AND [PROPOSED] ORDER TO FILE A FIFTH
SUPPLEMENTAL COMPLAINT
CASE NO. 1:05-CV-01207 LJO-EPG

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the proposed Fifth Supplemental Complaint), and subject to a reservation of Defendants’ rights to

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assert additional affirmative defenses and/or a motion to dismiss with respect to the Second Claim;

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WHEREAS, the parties agree that it would be in the interests of judicial efficiency to avoid

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further briefing on Plaintiffs’ Motion for Reconsideration or, in the Alternative, Leave to

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Supplement the Complaint; and

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WHEREAS, the Plaintiffs agree to withdraw their Motion for Reconsideration or, in the

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Alternative, Leave to Supplement the Complaint, see Doc. 1055, upon the Court’s approval of the

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accompanying Order;

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STIPULATION

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NOW THEREFORE, counsel for Plaintiffs and Defendants hereby stipulate to Plaintiffs

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filing the proposed Fifth Supplemental Complaint and accompanying exhibits, currently found at

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ECF Document Nos. 1055-1 through 1055-8, without prejudice to Defendants’ rights to assert

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additional affirmative defenses and/or a motion to dismiss with respect to the Second Claim for

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Relief. The Fifth Supplemental Complaint, subject to the Court’s approval, shall be filed following

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the Court’s ruling on the pending motions to dismiss, and that ruling shall be applicable to the Fifth

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Supplemental Complaint.

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DATED: February 15, 2017

Barbara J. Chisholm
Barbara J. Chisholm

.

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HAMILTON CANDEE (SBN 111376)
BARBARA JANE CHISHOLM (SBN 224656)
TONY LOPRESTI (SBN 289269)
CORINNE JOHNSON (SB 287385)
ALTSHULER BERZON LLP
177 Post St., Suite 300
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff NRDC

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KATHERINE POOLE (SBN 195010)
DOUGLAS ANDREW OBEGI (SBN 246127)
NATURAL RESOURCES DEFENSE COUNCIL
111 Sutter Street, 21st Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]

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STIPULATION AND [PROPOSED] ORDER TO FILE A FIFTH
SUPPLEMENTAL COMPLAINT
CASE NO. 1:05-CV-01207 LJO-EPG

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Attorneys for Plaintiff NRDC
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TRENT W. ORR (SBN 77656)
EARTHJUSTICE
50 California St. Suite 500
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiffs

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DATED: February 15, 2017
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/s/ Nicole M. Smith (as authorized on Feb. 15, 2017)
Nicole M. Smith
U.S. DEPARTMENT OF JUSTICE
ENVIRONMENT & NATURAL RESOURCES
DIVISION
601 D Street, NW Room 3712
Washington, D.C. 20044-7611
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Respondents Sally Jewell, in her official
capacity as Secretary of the Interior, et al.

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DATED: February 15, 2017

/s/ Meredith Nikkel (as authorized on Feb. 15, 2017)
Meredith Nikkel

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DOWNEY BRAND LLP
621 Capitol Mall, 18th Floor
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Intervenors and Joined Party
Defendants Reclamation District No. 108, Sutter
Mutual Water Company, Natomas Central Mutual
Water Company, River Garden Farms Company,
Pleasant Grove-Verona Mutual Water Company,
Pelger Mutual Water Company, Meridian Farms
Water Company, Henry D. Richter, et al., Howald
Farms, Inc., Oji Brothers Farm, Inc., Oji Family
Partnership, Carter Mutual Water Company,
Windswept Land And Livestock Company, Maxwell
Irrigation District, and Tisdale Irrigation and
Drainage Company

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DATED: February 15, 2017
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/s/ Andrew Hitchings (as authorized on Feb. 15, 2017)
Andrew Hitchings
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STIPULATION AND [PROPOSED] ORDER TO FILE A FIFTH
SUPPLEMENTAL COMPLAINT
CASE NO. 1:05-CV-01207 LJO-EPG

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SOMACH SIMMONS & DUNN
A Professional Corporation
500 Capitol Mall, Suite 1000
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Intervenors and Joined Party
Defendants Glenn-Colusa Irrigation District,
Princeton-Codora-Glenn Irrigation District,
Provident Irrigation District, Anderson-Cottonwood
Irrigation District, City Of Redding, M & T Chico
Ranch (Pacific Realty Associates), Reclamation
District No. 1004, Conaway Preservation Group,
LLC, and David and Alice te Velde Family Trust

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DATED: February 15, 2017

/s/ Daniel J. O’Hanlon (as authorized on Feb. 15,
2017)
Daniel J. O’Hanlon

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KRONICK, MOSKOVITZ, TIEDEMANN &
GIRARD
A Professional Corporation
400 Capitol Mall, 27th Floor
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant-Intervenors and Joined
Party Defendants, San Luis & Delta-Mendota Water
Authority, Westlands Water District, Coelho Family
Trust, Eagle Field Water District, Fresno Slough
Water District, Mercy Springs Water District, Oro
Loma Water District, and Tranquillity Irrigation
District

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STIPULATION AND [PROPOSED] ORDER TO FILE A FIFTH
SUPPLEMENTAL COMPLAINT
CASE NO. 1:05-CV-01207 LJO-EPG

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ORDER
Pursuant to the Parties’ Stipulation, the Court hereby GRANTS Plaintiffs leave to file the

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proposed Fifth Supplemental Complaint, currently found at ECF Document Nos. 1055-1 through

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1055-8.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

February 17, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER TO FILE A FIFTH
SUPPLEMENTAL COMPLAINT
CASE NO. 1:05-CV-01207 LJO-EPG