Natural Resources Defense Council et al v. Norton et al

Filing 1186

Stipulation and ORDER to File a Sixth Supplemental Complaint, signed by Chief Judge Lawrence J. O'Neill on 03/09/2018. (Martin-Gill, S)

1
2
COUNSEL IDENTIFICATION ON FINAL PAGE
3
4
5
UNITED STATES DISTRICT COURT
6
EASTERN DISTRICT OF CALIFORNIA
7
8
9
10

NATURAL RESOURCES DEFENSE
COUNCIL, et al.,
Plaintiffs,

11
12
13
14

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

v.
RYAN ZINKE, in his official capacity as
Secretary of the Interior, et al.,
Defendants.

15
16
17
18

SAN LUIS & DELTA MENDOTA
WATER AUTHORITY, et al.,
Defendants-Intervenors.

19
20

ANDERSON-COTTONWOOD
IRRIGATION DISTRICT, et al.,

21

Joined Parties.

22
23
24
25
26
27
28
STIPULATION AND ORDER TO FILE SIXTH
SUPPLEMENTAL COMPLAINT
CASE NO. 1:05-CV-01207 LJO-EPG

1

RECITALS
WHEREAS, as part of discovery on Plaintiffs’ Sixth Claim, Plaintiff Natural Resources

2
3

Defense Council (“NRDC”) has subpoenaed two National Oceanic and Atmospheric

4

Administration (“NOAA”) National Marine Fisheries Service (“NMFS”) employees, Maria Rea

5

and Dr. Eric Danner, for deposition testimony;
WHEREAS, the non-party Department of Commerce (“Department”), NOAA’s and

6
7

NMFS’s parent agency, has moved to quash the subpoenas, Dkt. 1153, and NRDC has moved to

8

compel compliance with the subpoenas, Dkt. 1154;

9

WHEREAS, at the hearing on the motion to quash the subpoenas and the motion to compel

10

compliance, Magistrate Judge Erica P. Grosjean stated that she would prefer to adjudicate the

11

dispute in the context of a supplemental claim by Plaintiffs to enforce compliance with the

12

subpoenas and the Department agreed to submit a written statement regarding “how soon it would

13

be able to answer a Third-Party complaint against it and appear before the Court for a hearing,”

14

and was ordered to also state whether it would object to amendment of the complaint, Dkt. 1166;
WHEREAS, the Department has filed a statement with the Court stating that it “would not

15
16

object to amendment of the complaint in this case for the sole purpose of adding a claim which

17

challenges the Department’s denial of Plaintiffs’ request to depose Ms. Rea and Dr. Danner,” and

18

“could file an answer in response to such a limited complaint within two weeks of service,” Dkt.

19

1172;

20

WHEREAS, in light of those representations, Magistrate Judge Grosjean has stated that she

21

will reserve ruling on the pending motion to quash and motion to compel until at least March 9,

22

2018, Dkt. 1174;

23

WHEREAS, Plaintiffs seek to supplement the currently operative complaint for the sole

24

and limited purpose of adding a claim against the Department and the NOAA Acting General

25

Counsel, in her official capacity, to enforce compliance with the subpoenas issued to Ms. Rea and

26

Dr. Danner, see Ex. 1 (proposed Sixth Supplemental Complaint), Ex. 2 (redlined version of

27

proposed Sixth Supplemental Complaint);

28

WHEREAS, Defendants (which for purposes of this stipulation refers to the defendants
1

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

1

and intervenor-defendants identified in the Fifth Supplemental Complaint, and does not include

2

the newly named Department and the NOAA Acting General Counsel), in entering into this

3

stipulation, do not waive any rights to object to the use of any deposition testimony by the NMFS

4

employees who are the subject of the subpoenas;

5

WHEREAS, the parties agree that supplementation of the currently operative complaint to

6

add Plaintiffs’ Seventh Claim, a claim solely against the Department and the NOAA Acting

7

General Counsel, does not affect the existing schedule for summary judgment relating to

8

Plaintiffs’ Second, Fourth and Sixth Claims, see Dkt. 1151;

9
10
11

WHEREAS, the parties, in entering into this stipulation, do not waive any rights they may
have to seek an extension of the summary judgment briefing schedule for good cause;
WHEREAS, Defendants, in entering into this stipulation, do not waive any rights they may

12

have to respond to the pending motion to quash and motion to compel, Dkt. 1153, 1154, and any

13

orders entered thereon in any manner afforded by law; and

14

WHEREAS, Defendants, in entering into this stipulation, do not waive any rights they may

15

have to file amended or supplemental answers, or any other response afforded by law, to the Sixth

16

Supplemental Complaint, but shall not be required to do so pursuant to the parties’ agreement that

17

upon the filing of the Sixth Supplemental Complaint, any allegations therein not included in the

18

Fifth Supplemental Complaint are automatically denied by Defendants, and such denial is

19

incorporated in full in Defendants’ answers to the Fifth Supplemental Complaint, and Defendants’

20

answers (Dkt. 1075, 1077, 1078, 1079, 1080, 1081, 1082, 1083, 1112) shall be deemed responsive

21

to the Sixth Supplemental Complaint;

22
23
24
25

STIPULATION
NOW THEREFORE, counsel for Plaintiffs and Defendants hereby stipulate to the
Plaintiffs filing the proposed Sixth Supplemental Complaint and accompanying exhibits.
Counsel for Plaintiffs and Defendants further stipulate that, upon the filing of the Sixth

26

Supplemental Complaint, any allegations therein not included in the Fifth Supplemental Complaint

27

are automatically denied by Defendants, and such denial is incorporated in full in Defendants’

28

answers to the Fifth Supplemental Complaint, and Defendants’ answers (Dkt. 1075, 1077, 1078,
2

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

1

1079, 1080, 1081, 1082, 1083, 1112) shall be deemed responsive to the Sixth Supplemental

2

Complaint.

3

DATED: March 8, 2018

4

6
7
8

Attorneys for Plaintiff NRDC

9

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]

10
11
12
13
14

Attorneys for Plaintiff NRDC

15

STACEY P. GEIS (SBN 181444)
GREGORY C. LOARIE (SBN 215859)
EARTHJUSTICE
50 California St. Suite 500
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

16
17
18
19

Attorneys for Plaintiffs

20

22
23
24
25
26
27
28

.

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]

5

21

/s/ Barbara J. Chisholm
Barbara J. Chisholm

DATED: March 8, 2018

/s/ Nicole M. Smith (as authorized on March 8, 2018)
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]
Attorneys for Respondents Ryan Zinke, in his official
capacity as Secretary of the Interior, et al.

3

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

1
DATED: March 8, 2018
2
3

/s/ Meredith Nikkel (as authorized on March 8, 2018)
Meredith Nikkel
DOWNEY BRAND LLP
621 Capitol Mall, 18th Floor
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]

4
5
6

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

7
8
9
10
11
12
13
14

DATED: March 8, 2018

15
16

/s/ Andrew Hitchings (as authorized on March 8,
2018)
Andrew Hitchings
SOMACH SIMMONS & DUNN
A Professional Corporation
500 Capitol Mall, Suite 1000
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]

17
18
19
20

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

21
22
23
24
25
26
27
28

DATED: March 8, 2018

/s/ Daniel J. O’Hanlon (as authorized on March 8,
2018)
Daniel J. O’Hanlon
KRONICK, MOSKOVITZ, TIEDEMANN &
4

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

1
2
3
4
5
6
7
8

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

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5

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

1
2
3

ORDER
Pursuant to the Parties’ Stipulation, the Court hereby GRANTS Plaintiffs leave to file the
proposed Sixth Supplemental Complaint.

4
5
6

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

March 9, 2018

UNITED STATES CHIEF DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6

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