Natural Resources Defense Council et al v. Norton et al

Filing 1099

ORDER on Stipulation Regarding Submission of Additional Documents, signed by Chief Judge Lawrence J. O'Neill on 7/7/17: The parties shall comply with the terms of the stipulation. (Hellings, J)

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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 REGARDING
SUBMISSION OF ADDITIONAL
DOCUMENTS

v.
RYAN K. ZINKE, in his 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 REGARDING SUBMISSION OF ADDITIONAL DOCUMENTS
CASE NO. 1:05-CV-01207 LJO-EPG

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WHEREAS, on June 21, 2017, the Court extended the deadlines to file all motions

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regarding completeness of the administrative record, any motions or stipulations to limit review of

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the Sixth Claim as against Federal Defendants to the administrative record, and any notice to the

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Court and parties of intent to seek discovery on the Sixth Claim as against Federal Defendants, to

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and including July 5, 2017 (ECF 1094);

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WHEREAS, Plaintiffs and Federal Defendants have reached an agreement that will avoid

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discovery, with limited exceptions, against the Federal Defendants with respect to Plaintiffs’ Sixth

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Claim;

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WHEREAS, in order to avoid discovery against Federal Defendants on Plaintiffs’ Sixth

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Claim, Federal Defendants have agreed to submit to the Court a list of authenticated documents

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(Attachment 1) that may be relevant to Plaintiffs’ Sixth Claim as against the SRS Contractors;

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WHEREAS, it is Federal Defendants’ position that the documents listed in Attachment 1

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shall not be used by Plaintiffs in support of Plaintiffs’ Sixth Claim as against Federal Defendants,

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and Federal Defendants retain their right to object to any use of these documents, move for a

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protective order to strike any of these documents in dispositive motion briefing, or otherwise

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respond to the use of these documents as appropriate;

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WHEREAS, in order to avoid discovery against Federal Defendants on Plaintiffs’ Sixth

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Claim, Federal Defendants have agreed to supplement the administrative record for the Sixth

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Claim that was previously lodged by Reclamation (ECF 1084) with the documents identified in

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Attachment 2;

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WHEREAS, Federal Defendants have agreed that the documents identified in Attachment

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2 as supplements to the administrative record (Attachment 2) can be used by Plaintiffs as

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appropriate in support of Plaintiffs’ Sixth Claim as against Federal Defendants;

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WHEREAS, Federal Defendants reserve their right to oppose, move to strike, or otherwise

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object to the use by Plaintiffs in support of Plaintiffs’ Sixth Claim as against Federal Defendants of

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any documents beyond those contained in the administrative record for the Sixth Claim that was

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previously lodged by Reclamation (ECF 1084) and the documents identified in Attachment 2 as

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supplements to the administrative record (see, i.e. ECF 1021 at 11-12; ECF 1025 at 2);
STIPULATION REGARDING SUBMISSION OF ADDITIONAL DOCUMENTS
CASE NO. 1:05-CV-01207 LJO-EPG

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WHEREAS, Plaintiffs and Federal Defendants agree that Plaintiffs’ Sixth Claim as against
the Federal Defendants is likely to be resolved on cross-motions for summary judgment;

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WHEREAS, it is Plaintiffs’ position that the documents listed in Attachment 1 and other

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documents may be relevant and used by Plaintiffs in support of Plaintiffs’ Sixth Claim as against

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Federal Defendants (ECF 1018 at 29-30) and Plaintiffs retain their right to use these documents

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and to oppose objections, motions to strike, or other efforts to limit the use of any of these

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documents in dispositive motion briefing and/or at trial;

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WHEREAS, nothing in this stipulation prohibits Plaintiffs from moving to supplement the
administrative record or requesting that the Court consider extra-record evidence with respect to

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Plaintiffs’ Second and Fourth Claims; nothing in this stipulation prohibits Plaintiffs from

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requesting that the Court consider declarations and other evidence in support of Plaintiffs’

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prosecution of the Sixth Claim against Federal Defendants; and nothing in this stipulation limits

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the scope of discovery which may be propounded upon the SRS Contractor Defendants with

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respect to Plaintiffs’ Sixth Claim against the SRS Contractor Defendants;

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WHEREAS, nothing in this stipulation prohibits Federal Defendants from opposing any

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motions to supplement the administrative record and/or motions requesting that the Court consider

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extra-record evidence, objecting to the use of extra-record evidence, including declarations,

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moving for a protective order to strike any use of extra-record evidence in dispositive motion

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briefing, or from otherwise responding to the use of these documents as appropriate.

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STIPULATION
NOW THEREFORE, counsel for Plaintiffs and Federal Defendants hereby stipulate to the

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following:

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1.

In order to obviate the need for discovery by Plaintiffs against Federal Defendants

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regarding Plaintiffs’ Sixth Claim for Relief, with limited exceptions, Federal Defendants agree to

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submit to the Court the appended list of documents (Attachment 1) along with a declaration

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authenticating the documents as either (a) U.S. Bureau of Reclamation documents, (b) documents

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maintained on government websites, or (c) other publicly available documents, and identifying,

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wherever possible, the authoring agency or person of each document; should the authoring agency
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be unknown, Federal Defendants will include a link to the website where the document was

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maintained or available at the time the document list was submitted to the Court;

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2.

All parties retain their right to object to the use of any document identified in

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Attachment 1 in dispositive motion briefing and/or at trial, including but not limited to: raising

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evidentiary objections; filing protective orders or motions to strike; or otherwise objecting to the

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use of the documents as appropriate; provided that Federal Defendants may not object on the

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ground that a document identified in Attachment 1 has not been authenticated or is not a public

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record. Plaintiffs retain their right to oppose any efforts to limit the use of the documents

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identified in Attachment 1 in dispositive motion briefing and/or at trial;

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3.

The parties to this stipulation agree that the documents identified in Attachment 2

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will supplement the administrative record for the Sixth Claim that was previously lodged by

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Reclamation (ECF 1084);

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4.

Plaintiffs reserve their right to seek through discovery additional communications

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between Federal Defendants and any or all SRS Contractors to the extent that Plaintiffs are unable

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to obtain such communications from the SRS Contractors. To the extent Plaintiffs seek production

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of specific documents from Federal Defendants, Plaintiffs will include in their request the

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documents’ sender, recipient, date, and/or title, to the best of Plaintiffs’ ability. Plaintiffs reserve

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their right to depose up to two witnesses from Federal Defendant agencies as subject matter

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experts. Federal Defendants will not object to the deposition of up to two subject matter experts,

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but reserve their right to raise other applicable objections to such depositions.

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5.

Federal Defendants will submit the documents identified on Attachment 1 and

Attachment 2 on July 14, 2017.

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DATED: July 5, 2017

/s/_Nicole M. Smith_______
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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Bradley H. Oliphant, Trial Attorney
U.S. DEPARTMENT OF JUSTICE
ENVIRONMENT & NATURAL RESOURCES
DIVISION
999 18th St., South Terrace, Ste. 370
Denver, CO 80202
Tel: [phone]
Facsimile: [phone]

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Attorneys for Respondents Ryan K. Zinke, in his
official capacity as Secretary of the Interior, et al.

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DATED: July 5, 2017

/s/ Katherine S. Poole (as authorized on July 5).
Katherine S. Poole

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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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Attorneys for Plaintiff NRDC
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HAMILTON CANDEE (SBN 111376)
BARBARA JANE CHISHOLM (SBN 224656)
TONY LOPRESTI (SBN 289269)
CORINNE JOHNSON (SBN 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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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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STIPULATION REGARDING SUBMISSION OF ADDITIONAL DOCUMENTS
CASE NO. 1:05-CV-01207 LJO-EPG

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ORDER

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Pursuant to the Parties’ Stipulation, the Court hereby ORDERS that the parties shall

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comply with the terms of the stipulation.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

July 7, 2017

UNITED STATES CHIEF DISTRICT JUDGE

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