San Luis & Delta-Mendota Water Authority et al v. Salazar et al

Filing 256

ORDER conditionally granting 239 Motion for leave to file amici curiae brief, signed by Judge Oliver W. Wanger on 08/07/2009. (Coffman, Lisa)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A group of California farmers and the City of Fresno jointly move for leave to file an amici curiae brief in support of the Plaintiffs' motion for summary judgment in Stewart & Jaspar UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA THE DELTA SMELT CASES SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. SALAZAR, et al. (1:09-CV-407 OWW DLB); STATE WATER CONTRACTORS v. SALAZAR, et al. (1:09-CV-422 OWW GSA); COALITION FOR A SUSTAINABLE DELTA, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (1:09-CV-480 OWW GSA) METROPOLITAN WATER DISTRICT v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., (1:09-CV-631 OWW DLB) STEWART & JASPAR ORCHARDS, et al. v. UNITED STATES FISH AND WILDLIFE SERVICE, et al. (1:09-cv-892 OWW GSA) 1:09-CV-407 1:09-CV-422 1:09-CV-631 1:09-CV-892 OWW OWW OWW OWW DLB GSA DLB GSA PARTIALLY CONSOLIDATED WITH: 1:09-CV-480 OWW GSA ORDER CONDITIONALLY GRANTING MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF Orchards, et al., v. U.S. Fish and Wildlife Service, et al., 1:09-CV-00892 OWW GSA. Doc. 2. Plaintiffs' motion focuses 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 exclusively on their claim that the United States Fish and Wildlife Service's ("FWS") application of the Endangered Species Act ("ESA") to the threatened Delta smelt, a species that resides exclusively within California, is beyond Congress' authority under the Commerce Clause. Doc. 228-2. Amici applicants include farmers who own, operate, and manage farms in Fresno and/or Kings County, 1 and the City of Fresno. Although their interest in this lawsuit is not disputed, Amici's proposed brief repeats many, if not all, of the arguments made in Plaintiffs' brief. Compare Doc. 228 to Doc. 254. The scheduling order in this case, which consolidated or partially consolidated five separate lawsuits challenging the same Biological Opinion issued by FWS, provided for cooperation between the parties in briefing and written submissions: Each Plaintiff shall have the right to be heard on and to brief issues presented by that party's complaint. Counsel for all Plaintiffs in the Consolidated Cases are requested to confer and cooperate in the presentation of briefs, other legal memoranda, and written submissions to minimize duplication and length of submissions, with a view toward limiting the repetition and volume of written argument and authorities presented to the Court. This direction is not intended to foreclose the right of any Plaintiff to identify separate issues and to argue those issues. This right to be heard shall include Real Party In Interest, the State of California and its Department of Water Resources and Lester Snow, its director. Doc. 120 at 4. 1 27 28 Some of the California farmers operate within the Westlands Water District, which is already party to one of the consolidated lawsuits. See San Luis & Delta-Mendota Water Authority, et al., v. Salazar, et al., 1:09-CV-407 OWW DLB. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Amici applicants may participate, but only insofar as they advance arguments or issues not raised by existing parties. Because their proposed brief is not in substantial compliance with this requirement, as it is excessively duplicative of motions already presented by the parties, it will not be considered. Amici may submit a revised brief, raising only unique arguments, on or before 5:00 p.m. on Thursday, August 13, 2009. SO ORDERED Dated: August 7, 2009 /s/ Oliver W. Wanger___ Oliver W. Wanger United States District Court. 3

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