San Luis & Delta-Mendota Water Authority et al v. Salazar et al
Filing
903
MEMORANDUM DECISION AND ORDER Re Appellants' Certification Re Transcripts Necessary for Appeal 891 , signed by Judge Oliver W. Wanger on 06/08/2011. (Coffman, Lisa)
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
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DELTA SMELT CONSOLIDATED CASES
SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY, et al. v. SALAZAR,
et al. (1:09-cv-00407 OWW DLB)
1:09-CV-00407 OWW DLB
1:09-cv-00480-OWW-GSA
1:09-cv-00422-OWW-GSA
1:09-cv-00631-OWW-DLB
1:09-cv-00892-OWW-DLB
STATE WATER CONTRACTORS v.
SALAZAR, et al. (1:09-cv-00480OWW-GSA)
Partially consolidated
with:
1:09-cv-01201-OWW-DLB
COALITION FOR A SUSTAINABLE
DELTA, et al. v. UNITED STATES
FISH AND WILDLIFE SERVICE, et
al. (1:09-cv-00422-OWW-GSA)
MEMORANDUM DECISION AND
ORDER RE DEFENDANTINTERVENOR/ APPELLANTS’
CERTIFICATION RE
TRANSCRIPTS NECESSARY
FOR APPEAL (DOC. 897)
METROPOLITAN WATER DISTRICT v.
UNITED STATES FISH AND WILDLIFE
SERVICE, et al. (1:09-cv-00631OWW-DLB)
NINTH CIRCUIT CASE
NO: 11-15871
STEWART & JASPER ORCHARDS, et
al. v. UNITED STATES FISH AND
WILDLIFE SERVICE (1:09-cv00892-OWW-DLB)
FAMILY FARM ALLIANCE v.
SALAZAR, et al. (1:09-CV-01201OWW-DLB)
On April 7, 2011, Defendant-Intervenors Natural
Resources Defense Council and The Bay Institute
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(“Appellants”) filed a notice of appeal to the United
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States Court of Appeals for the Ninth Circuit in this
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action.
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Doc. 853.
The following day, Federal Defendants
filed a motion to alter or amend the judgment, Doc. 856,
which stayed the deadlines for the appeal until its
resolution on May 4, 2011, Doc. 875.
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Pursuant to Circuit Rule 10-3.1(a), Appellants
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notified the parties on May 16, 2011 that they intended
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to order the following district court transcripts (or
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portions thereof) for the appeal:
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(1)
October 2, 2009 hearing on cross-motions for
summary judgment;
(2)
October 19, 2009 hearing on motions to
supplement the administrative record and motions
to allow expert testimony;
(3)
April 2 & 5-7, 2010 hearing on motion for
preliminary injunction; and
(4)
July 8-9, 2010 hearing on cross-motions for
summary judgment.
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Doc. 891-1 at 1 (“Transcript Notice”).
The Transcript Notice lists the following as the
issues Appellants intend to pursue on appeal:
(1)
Whether the district court erred in considering
extra-record evidence in challenges to the 2008
biological opinion for the delta smelt under the
Endangered Species Act [(“ESA”)] and
Administrative Procedure Act [(“APA”)]?
(2)
Whether the district court erred in determining
that the U.S. Fish & Wildlife Service failed to
rely on the best available science or that the
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2008 biological opinion for the delta smelt was
otherwise arbitrary and capricious under the
[ESA] and [APA]?
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(3)
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Whether the district court erred in determining
that the U.S. Bureau of Reclamation was required
to conduct environmental review of the 2008
biological opinion for the delta smelt under the
National Environmental Policy Act [(“NEPA”)]
prior to provisionally adopting and implementing
the biological opinion?
Id. at 1-2.
On May 26, 2011, Plaintiffs State Water Contractors,
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Coalition for a Sustainable Delta, Kern County Water
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Agency, the Metropolitan Water District of Southern
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California, San Luis & Delta-Mendota Water Authority, and
Westlands Water District (“Water Agency Appellees”)
responded to the Transcript Notice pursuant to Circuit
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Rule 10-3.1(b), arguing that “[t]o paint an undistorted
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picture of the district court’s proceedings, the
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transcripts for all of the approximately thirty-five
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hearing dates conducted by the trial court are necessary
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to the appeal for the purpose of assisting the Court with
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an effective review of the issues.”
added).
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Water Agency Appellees identify the following 27
additional transcripts as “necessary” to the appeal:
(1)
May 15, 2009 telephone conference regarding
Appellants’ Motion to Intervene in the May 22,
2009 preliminary injunction hearing;
(2)
May 22, 2009 hearing regarding a motion for
preliminary injunction;
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Doc. 891-2 (emphasis
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(3)
June 10, 2009 hearing regarding an Old and Middle
River flow decision;
(4)
June 19, 2009 scheduling conference;
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(5)
July 10, 2009 scheduling conference;
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(6)
August 12, 2009 hearing re motion for extension of
time;
(7)
October 6, 2009 conference regarding Federal Rule
of Evidence 706 court-appointed experts (“706
Experts”);
(8)
October 8, 2009 conference regarding 706 Experts
and setting an extended hearing on motions for
summary judgment;
(9)
November 19, 2009 scheduling conference regarding
[NEPA] remedies, 706 Experts, and intervention by
the California Department of Water Resources;
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(10) November 25, 2009 scheduling conference regarding
NEPA remedies;
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(11) December 7, 2009 hearing regarding motion for
entry of judgment;
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(12) January 11, 2010 order to show cause hearing
regarding consolidation of Plaintiff Family Farm
Alliance’s claims;
(13) January 26, 2010 telephonic status conference
regarding schedule for motions for temporary
restraining order, preliminary injunction, and
summary judgment;
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(14) February 2, 2010 hearing regarding motion for
temporary restraining order;
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(15) February 10, 2010 hearing regarding motion for
temporary restraining order;
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(16) February 12, 2010 telephonic status conference
regarding motion for preliminary injunction;
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(17) March 16, 2010 telephonic scheduling conference
regarding motion for summary judgment;
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(18) March 30, 2010 hearing regarding motions for
preliminary injunction and temporary restraining
order;
(19) March 31, 2010 hearing regarding motions for
preliminary injunction and temporary restraining
order;
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(20) April 1, 2010 hearing regarding motions for
preliminary injunction and temporary restraining
order;
(21) May 4, 2010 telephonic status conference regarding
hearing dates;
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(22) May 28, 2010 telephonic status conference
regarding imminence of harm to Delta smelt;
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(23) January 4, 2011 status conference regarding
further hearings;
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(24) February 9, 2011 telephonic scheduling conference
regarding motion for preliminary injunction;
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(25) February 23, 2011 hearing regarding motion in
limine to exclude witnesses;
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(26) February 25, 2011 telephonic status conference
regarding stipulation for interim remedies;
(27) April 27, 2011 hearing regarding motion to amend
judgment.
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Appellants do not agree that these transcripts are
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necessary to the appeal.
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a procedure for resolving such disputes.
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10-3.1(d) provides:
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The Ninth Circuit Rules provide
Circuit Rule
In ordering the transcripts, appellant shall
either order all portions of the transcript
listed by both appellant and appellee or certify
to the district court pursuant to subsection (f)
of this rule that the portions listed by
appellee in the response to appellant’s initial
notice are unnecessary.
Circuit Rule 10-3.1(f) provides:
If appellee notifies appellant that additional
portions of the transcript are required pursuant
to Circuit Rule 10-3.1(b), appellant shall make
arrangements with the court reporter to pay for
these additional portions unless appellant
certifies that they are unnecessary to the
appeal and explains why not.
If such a certificate is filed in the district
court, with copies to the court reporter and
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this court, the district court shall determine
which party shall pay for which portions of the
transcript. Appellant may ask the Court of
Appeals for an extension of time to make
arrangements with the court reporter to pay for
the transcripts pending the district court’s
resolution of the issue.
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Appellants argue that only the four transcripts they
identified in their initial Transcript Notice are
necessary for the appeal:
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The October 19, 2009 hearing on motions to
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supplement the administrative record and motions
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to allow expert testimony, and well as the four
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days (April 2 & 5-7, 2010) of the second
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preliminary injunction hearing during which the
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Court heard testimony from witnesses for the
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Water Agency Appellees and took evidence that
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was the subject of the October 19, 2009 motion,
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are relevant and necessary to Appellants’
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challenge to the district court’s consideration
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of extra-record evidence.
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•
The October 2, 2009 and July 8-9, 2010 hearings
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on cross-motions for summary judgment directly
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concern whether the Bureau of Reclamation’s was
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required to conduct environmental review of the
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2008 biological opinion under the NEPA, and
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whether the U.S. Fish & Wildlife Service failed
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to rely on the best available science or whether
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the 2008 biological opinion was otherwise
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arbitrary and capricious under the ESA and APA.
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Appellants offer the following objections to the
additional 27 transcripts identified by Water Agency
Appellees:
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Items 1, 4, 5, 7, 8-10, 13, 16, 17, 21-24, 26 are
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scheduling or status conferences which did not
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concern the issues on appeal. 1
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Items 3, 6, 11, 12, 25, and 27 are hearings on
matters unrelated or only very tangentially related
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to the issues on appeal.
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See id., items 3 (“June 10,
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2009 hearing regarding an Old and Middle River flow
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decision”), 6 (“August 12, 2009 hearing re motion for
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extension of time”), 11 (“December 7, 2009 hearing
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regarding motion for entry of judgment”), 12
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(“January 11, 2010 order to show cause regarding
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consolidation of Plaintiff Family Farm Alliance’s
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claims”), 25 (“February 23, 2011 hearing regarding
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There is no merit to Water Agency Appellees’ omnibus objection that
Appellants’ certification is insufficient because Appellants failed
to explain “why” the 27 additional transcripts are unnecessary to
the appeal. Appellants explained generally why they believe the
transcripts are unnecessary. Although Circuit Rule 10-3.1(f) does
require appellant to “explain why” the additional transcripts are
unnecessary, the Rule does not set forth any specificity
requirements for that explanation. Appellants’ explanations are
sufficient to permit resolution of this dispute.
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motion in limine to exclude witnesses”); 27 (“April
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27, 2011 hearing regarding motion to amend
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judgment”).
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•
The remaining six transcripts from hearings on
motions for temporary restraining order or
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preliminary injunction.
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identified transcripts from four days (April 2 & 5-7,
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2010) of the second preliminary injunction hearing.
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Those days concern the admission of extra-record
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evidence.
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Appellants already
The remaining days of that hearing, items
18-20, primarily involved testimony related to
injunctive relief requests in the Consolidated
Salmonid Cases.
The earlier injunctive relief
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proceedings (items 2, 14, 15) likewise do not
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directly relate to the issues on appeal.
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Doc. 891 at 2-3.
Water Agency Appellees respond generally that
“[b]ecause Appellants have broadly cast the issues on
appeal as relating to the Court’s findings and
conclusions related to extra-record evidence, application
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of the best available science standard, and [NEPA]...
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Appellees cannot possibly determine at this stage what
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the specific nature of Appellants’ arguments will be, nor
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the support they will rely upon in making thse
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arguments.”
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transcripts be deemed “necessary to the appeal” see
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Circuit Rule 10-3.1(b), must be given some meaning.
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Doc. 897 at 1.
But, the requirement that
Although caselaw interpreting this rule is limited, one
district court in Alaska required appellees to cover
approximately half the costs of transcript production
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where the appellees demanded inclusion of all testimony
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from a trial, deeming this “the most expensive way to
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proceed.”
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LLC, 2005 WL 1203021, *2 (D. Alaska, May 15, 2005).
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Lumbermens Mut. Cas Co v. Luciano Enterp.,
The
district court reasoned that “[w]hile most of the
testimony is important, certainly not all of it is worth
transcribing.
[Appellee] could have made, but chose not
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to make, an effort to be more precise and frugal in its
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designation witness, warranting at least a sharing of
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costs by the party making such a demand.”
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Id.
Here, Appellees cannot demonstrate that “most” of the
transcribed proceedings are “important.”
The most
specific rationale offered is that “[a]mong the broadlyframed issues raised by Defendant-Intervenors on appeal
is the admission of extra-record evidence.”
Doc. 897 at
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2.
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addressed repeatedly during the district court
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proceedings and, on each occasion, the Court provided
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According to Water Agency Appellees, this issue “was
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assurance to the parties that it was aware of the
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limitations on the admission of extra-record evidence and
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would apply those limitations to the specific
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circumstances at hand.”
Id.
Water Agency Appellees
argue that “[t]he limited range of transcripts selected
by Appellants is unlikely to permit Water Agency
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Appellees to make a showing of the continuing awareness
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by the Court of the relevant restrictions on the
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admission of such evidence.
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range of transcripts on appeal, on the other hand, will
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Inclusion of the entire
allow such a showing to be made.”
Id.
The law regarding
the use of extra-record evidence was reviewed in great
detail during the hearings designated by Appellants.
See
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October 19, 2009 hearing transcript.
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the subject of at least one written order.
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In a technical sense, the additional transcripts are not
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“necessary” to address this issue on appeal.
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It has also been
See Doc. 462.
The rules do not provide the district court with
authority to completely exclude transcripts from the
appellate record.
Rather, the district court is only
authorized to apportion the costs of transcript
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production.
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additional requested transcripts are not technically
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necessary to the appeal, Water Agency Appellees must pay
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See Circuit Rule 10-3.1(f).
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Because the
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for their production and inclusion in the appellate
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record.
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SO ORDERED
Dated: June 8, 2011
/s/ Oliver W. Wanger
United States District Judge
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