San Luis & Delta-Mendota Water Authority et al v. Salazar et al
Filing
996
STIPULATION AND ORDER re: EXHIBITS, WITNESSESS AND ORAL ARGUMENT FOR MOTION FOR INJUNCTION RELIEF, signed by Judge Oliver W. Wanger on 7/21/2011. (Kusamura, W)
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COUNSEL IDENTIFICATION AT END
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION
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THE DELTA SMELT CASES
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SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY et al. v. SALAZAR et al. (Case
No. 1:09-cv-407)
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STATE WATER CONTRACTORS v.
SALAZAR et al. (Case No. 1:09-cv-422)
COALITION FOR A SUSTAINABLE DELTA
et al. v. UNITED STATES FISH AND
WIDLIFE SERVICE et al. (Case No. 1:09-cv480)
1:09-cv-00407-OWW-GSA
1:09-cv-00422-OWW-GSA
1:09-cv-00631-OWW-GSA
1:09-cv-00892-OWW-GSA
PARTIALLY CONSOLIDATED WITH:
1:09-cv-00480-OWW-GSA
STIPULATION AND ORDER RE:
EXHIBITS, WITNESSES AND ORAL
ARGUMENT FOR MOTION FOR
INJUNCTIVE RELIEF
Judge: Honorable Oliver W. Wanger
Date:
July 26-29, 2011
METROPOLITAN WATER DISTRICT v.
UNITED STATES FISH AND WILDLIFE
SERVICE et al. (Case No. 1:09-cv-631)
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STEWART & JASPER ORCHARDS et al. v.
UNITED STATES FISH AND WILDLIFE
SERVICE et al. (Case No. 1:09-cv-892)
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STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF
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The parties, by and through their respective counsel of record, as identified below, hereby
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have met and conferred and hereby propose the following schedule for the hearing on Plaintiffs’
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Motion for Injunctive Relief scheduled for July 26-29, 2011:
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1.
The parties shall serve and filed their respective exhibit lists on Wednesday, July
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20, 2011. The exhibit lists shall identify those exhibits to be used for each party’s case-in-chief
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and need not include exhibits that may be used for demonstrative, cross-examination and/or
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rebuttal purposes. The exhibit lists shall identify the Administrative Record cite for each exhibit
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from the Administrative Record. For exhibits not included within the Administrative Record, the
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parties shall serve on each other copies of the exhibits by email with their exhibit lists or on disks
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served by overnight delivery for receipt on Thursday, July 21, 2011. Service of exhibits on the
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Federal Defendants shall be by disk by overnight mail only and not by email. The parties agree
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to label their exhibits numerically using the following number ranges:
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Plaintiffs: 0-300
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Plaintiff-Intervenor: 301-500
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Federal Defendants: 501-1000
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Defendant-Intervenors: 1001-1500
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The parties have agreed to submit Defendants’ Motion to Strike on the papers unless the Court
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has questions for the parties. The parties respectfully request that the Court rule on the Motion to
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Strike prior to commencement of argument and evidence on the Motion for Injunctive Relief.
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The parties propose that time set aside for consideration of the Motion to Strike, inclusive of the
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time for the Court to share its views on and rule on the motions, and subject to the Court’s
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concurrence, be from 8:30 a.m. to 9:30 a.m. on July 26, 2011. The time not used by the Court
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shall be divided evenly between (a) Plaintiffs and Plaintiff-Intervenor on the one hand, and (b)
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Federal Defendants and Defendant-Intervenors on the other hand.
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2.
Based on the a court day of 8:30 a.m. to 5:00 p.m. each day and the Court’s
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routine practice of scheduling one 15 minute break each morning, one 90 minute break at lunch,
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and one 15 minute break each afternoon, the parties anticipate that there will be 25 court hours,
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after the Motion to Strike, for evidence and argument. Therefore, each side will be allocated a
DIEPENBROCK
ELKIN LLP
-1STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF
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total of 12.5 hours to be used by each side in its discretion among opening statements,
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arguments, and direct, cross and rebuttal examinations, subject to not exceeding the total hours
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per side per case. Any party may at its sole discretion cede all or a portion of its time to any
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other party.
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3.
The parties have met and conferred regarding the order of witnesses.
As
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explained in the Defendants’ pending motion to strike, Defendants’ position is that Plaintiffs’
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evidence of alleged irreparable harm is the only evidence that may be considered because the
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merits of Action 4 have been fully adjudicated and a final judgment has been entered. See
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Docket No. 947-1. Furthermore, because a likelihood of irreparable harm is a threshold showing
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that must be made before the Court can issue injunctive relief, Defendants’ position is that
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Plaintiffs’ testimony regarding alleged irreparable harm (i.e., Mr. Erlewine and Mr. Leahigh)
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should be presented first, prior to any testimony on the merits (i.e., Drs. Deriso, Burnham,
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Hanson, and Hutton), because if the Court finds no likelihood of irreparable harm, it need not
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proceed to the merits witnesses, thereby conserving judicial and party resources. The Court
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previously noted that such an approach made sense. See Docket No. 790 (summarizing the
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Court’s comments at a status hearing on Plaintiffs’ previous injunction motion that “it makes
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sense” for irreparable harm to be adjudicated prior to deciding whether to having the rest of the
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evidentiary hearing). Plaintiffs do not agree that Messrs. Erlewine and Leahigh should be
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presented first. They wish to present Drs. Deriso, Burnham, and Hanson first. Notwithstanding
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Defendants’ objections to presenting merits testimony first, in an effort to conserve judicial and
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party resources and avoid a scheduling dispute, if the Court is inclined to allow merits testimony
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to be presented first, Defendants are willing to proceed with Plaintiffs’ preferred order of
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witnesses as set forth below.
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objections raised by Defendants to date, including this Court’s jurisdiction to hold an evidentiary
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hearing and the objections made in Defendants’ pending motion to strike. Defendants believe
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the Court would be acting well within its discretion to compel Plaintiffs to present testimony
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from Mr. Erlewine and Mr. Leahigh at the outset of the evidentiary hearing.
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4.
However, this should not be construed as a waiver of any
In response to Defendants’ position regarding the order of witnesses, Plaintiffs
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STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF
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submit that they have coordinated many schedules of counsel and witnesses to accommodate the
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wishes of Defendants leading up to these hearings. Plaintiffs do not agree that Defendants
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should dictate the order that Plaintiffs put on their witnesses for this motion. Plaintiffs brought
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this motion for interim relief in light of the Court's decision that the RPAs in the BiOp are
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arbitrary and capricious, including the Fall X2 Action. It is Defendants' decision to proceed with
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the Fall X2 Action notwithstanding the Court's ruling that has necessitated this hearing. All of
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the testimony will go to the issue of harm, showing lack of harm to the species as well as the
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harm to the state's water supply. Accordingly, Plaintiffs submit that the order of witnesses is
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appropriate, meets individual scheduling needs, and will be the most efficient presentation to the
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Court.
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The following is the order of opening statements, witnesses and closing
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arguments. This has been set based on the parties’ best estimates of time for examinations. If
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the examination of any witness finishes early, the next witness in order will be called to testify,
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regardless of the date scheduled below.
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Tuesday, July 26, 2011
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Opening Statements
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Dr. Richard Deriso
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Dr. Kenneth Burnham
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Dr. Charles Hanson
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Wednesday, July 27, 2011
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Dr. Charles Hanson, continued, if necessary
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Dr. Paul Hutton
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Mr. John Leahigh
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Mr. Terry Erlewine
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Thursday, July 28, 2011
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Mr. Frederick Feyrer
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Dr. Matthew Nobriga
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Dr. Jennifer Norris
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Friday, July 29, 2011
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Dr. Jennifer Norris, continued
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Plaintiff rebuttal witnesses
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Closing Arguments
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6.
In addition to the foregoing live testimony, the parties further stipulate that the
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following witnesses may testify via their previously submitted declarations and that the parties
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will not raise a hearsay objection against the admissibility of such declarations on the grounds
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that the declaration is a statement that was made other than while testifying at the trial or
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hearing: James Snow, David Sunding, Rod Stiefvater, Jeffrey Mettler, Peter Gleick, and Jeffrey
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Michael. In so stipulating, the parties against whom the declarations have been offered do not
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stipulate that the facts stated within the declarations are undisputed or waive any other
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evidentiary objections.
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7.
The parties have agreed that they may submit to the Court and rely upon during
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the hearing updated evidence regarding project operations, flows, and status and location of the
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species.
SO STIPULATED
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Dated: July 20, 2011
KRONICK, MOSKOVITZ, TIEDEMANN
GIRARD, LLP
DIEPENBROCK ELKIN, LLP
A Professional Corporation
&
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By:
/s/_[Eileen M. Diepenbrock]______________
EILEEN M. DIEPENBROCK
Attorneys for Plaintiffs
SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY AND WESTLANDS WATER
DISTRICT
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Dated: July 20, 2011
BROWNSTEIN HYATT FARBER SCHRECK LLP
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By: : /s/_[Steve O. Sims] (as authorized)
STEVE O. SIMS
MICHELLE C. KALES
GEOFFREY M. WILLIAMSON
Attorneys for Plaintiff
WESTLANDS WATER DISTRICT
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Dated: July 20, 2011
BEST BEST & KRIEGER LLP
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By:
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Dated: July 20, 2011
/s/ [Gregory K. Wilkinson](as authorized)
GREGORY K. WILKINSON
STEVEN M. ANDERSON
PAETER E. GARCIA
MELISSA R. CUSHMAN
Attorneys for Plaintiff
STATE WATER CONTRACTORS
NOSSAMAN LLP
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By:
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Dated: July 20, 2011
/s/ [Paul S. Weiland](as authorized)_______
ROBERT D. THORNTON
PAUL S. WEILAND
AUDREY HUANG
ASHLEY J. REMILLARD
Attorneys for Plaintiffs
COALITION FOR A SUSTAINABLE DELTA
and KERN COUNTY WATER AGENCY
MORRISON & FOERSTER LLP
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By: /s/_[Christopher J. Carr](as authorized)______
ARTURO J. GONZALEZ
CHRISTOPHER J. CARR
WILLIAM M. SLOAN
TRAVIS BRANDON
Attorneys for Plaintiff
THE METROPOLITAN WATER
DISTRICT OF SOUTHERN CALIFORNIA
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Dated: July 20, 2011
KAMALA D. HARRIS, ATTORNEY GENERAL
OF THE STATE OF CALIFORNIA
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By: /s/ [Cecilia L. Dennis](as authorized)_
CLIFFORD T. LEE
CECILIA L. DENNIS
WILLIAM JENKINS
ALLISON GOLDSMITH
Deputies Attorney General
Attorneys for Plaintiff-In-Intervention
CALIFORNIA DEPARTMENT OF
WATER RESOURCES
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Dated: July 20, 2011
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IGNACIA S. MORENO, ASSISTANT ATTORNEY
GENERAL
United States Department of Justice,
Environmental & Natural Resources Division
SETH M. BARSKY, CHIEF
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By: /s/_[Ethan Carson Eddy]_(as authorized)___
ETHAN CARSON EDDY, Trial Attorney
Wildlife & Marine Resources Section
Attorneys for FEDERAL DEFENDANTS
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Dated: July 20, 2011
NATURAL RESOURCES DEFENSE COUNCIL
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By: : /s/_[Katherine Poole]_(as authorized)____
KATHERINE POOLE
DOUG OBEGI
Attorneys for Defendant-Intervenor
NATURAL RESOURCES DEFENSE
COUNCIL
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Dated: July 20, 2011
THE BAY INSTITUTE
By: /s/_[Trent W. Orr] (as authorized)________
TRENT W. ORR
GEORGE M. TORGUN
Attorneys For Defendant-Intervenor
THE BAY INSTITUTE
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IT IS SO ORDERED.
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Dated: July 21, 2011
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/s/ Oliver W. Wanger
THE HONORABLE OLIVER W. WANGER
UNITED STATES DISTRICT JUDGE
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IDENTIFICATION OF COUNSEL
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DANIEL J. O’HANLON (SBN 122380)
HANSPETER WALTER (SBN 244847)
KRONICK, MOSKOVITZ, TIEDEMANN &
GIRARD
400 Capitol Mall, 27th Floor
Sacramento, CA 95814
Telephone:
(916) 321-4500
Facsimile:
(916) 321-4555
H. CRAIG MANSON (SBN 102298)
General Counsel
Westlands Water District
3130 N. Fresno Street
Fresno, CA 93703
Telephone: (559) 224-1523
Facsimile: (559) 241-6277
EILEEN M. DIEPENBROCK (SBN 119254)
DAVID A. DIEPENBROCK (SBN 215679)
JONATHAN R. MARZ (SBN 221188)
DIEPENBROCK ELKIN, LLP
400 Capitol Mall, 18th Floor
Sacramento, CA 95814
Telephone: (916) 492-5000
Facsimile: (916) 446-4535
STEVE O. SIMS (admitted pro hac vice)
MARTHA F. BAUER (admitted pro hac vice)
MARK J. MATHEWS (admitted pro hac vice)
MICHELLE C. KALES (admitted pro hac vice)
GEOFFREY M. WILLIAMSON (admitted pro
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hac vice)
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BROWNSTEIN HYATT FARBER
SCHRECK LLP
410 17th Street, Suite 2200
Denver, CO 80202
Telephone: (303) 223-1100
Facsimile: (303) 223-1111
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Attorneys for Plaintiff
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Attorneys for Plaintiffs
SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY and WESTLANDS WATER
DISTRICT
WESTLANDS WATER DISTRICT
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GREGORY K. WILKINSON (SBN 054809)
STEVEN M. ANDERSON (SBN 186700)
PAETER E. GARCIA (SBN 199580)
MELISSA R. CUSHMAN (SBN 246398)
BEST BEST & KRIEGER LLP
3750 University Avenue, Suite 400
P. O. Box 1028
Riverside, CA 92502
Telephone: (951) 686-1450
Facsimile: (951) 686-3083
NOSSAMAN LLP
ROBERT D. THORNTON (SBN 72934)
PAUL S. WEILAND (SBN 237058)
AUDREY M. HUANG (SBN 217622)
ASHLEY J. REMILLARD (SBN 252374)
18101 Von Karman Avenue, Suite 1800
Irvine, CA 92612
Telephone: (949) 833-7800
Facsimile: (949) 833-7878
Attorneys for Plaintiff
STATE WATER CONTRACTORS
Attorneys for Plaintiffs
COALITION FOR A SUSTAINABLE
DELTA and KERN COUNTY WATER
AGENCY
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KERN COUNTY WATER AGENCY
AMELIA T. MINABERRIGARAI (SBN
192359)
P.O. Box 58
Bakersfield, CA 93302-0058
Telephone: (661) 634-1400
Facsimile: (661) 634-1428
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Attorney for Plaintiff
KERN COUNTY WATER AGENCY
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ARTURO J. GONZÁLEZ (SBN 121490)
CHRISTOPHER J. CARR (SBN 184076)
WILLIAM M. SLOAN (SBN 203583)
TRAVIS BRANDON (SBN 270717)
MORRISON & FOERSTER, LLP
425 Market Street
San Francisco, CA 94105
Telephone: (415) 268-7000
MARCIA L. SCULLY (SBN 80648)
Interim General Counsel
LINUS MASOUREDIS (SBN 77322)
Senior Deputy General Counsel
LMasouredis@mwdh2o.com
THE METROPOLITAN WATER DISTRICT
OF SOUTHERN CALIFORNIA
1121 L Street, Suite 900
Sacramento, California 95814-3974
Telephone: (916) 650-2600
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Attorneys for Plaintiff
THE METROPOLITAN WATER DISTRICT
OF SOUTHERN CALIFORNIA
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KAMALA D. HARRIS (SBN 146672)
Attorney General of California
CLIFFORD T. LEE (SBN 74687)
CECILIA L. DENNIS (SBN 201997)
ALLISON GOLDSMITH (SBN 238263)
DEPUTY ATTORNEY GENERAL
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5511
Facsimile: (415) 703-5480
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Attorneys for Plaintiff in Intervention
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CALIFORNIA DEPARTMENT OF
WATER RESOURCES
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IGNACIA S. MORENO,
Assistant Attorney General
United States Department of Justice
Environmental & Natural Resources Division
SETH M. BARSKY, Chief
S. JAY GOVINDAN, Assistant Chief
ETHAN EDDY (Cal. Bar. No. 237214)
Trial Attorney
ROBERT P. WILLIAMS (DC Bar No.
474730)
Trial Attorney
United States Department of Justice
Wildlife and Marine Resources Section
Benjamin Franklin Station, P.O. Box 7369
Washington, D.C. 20044-7369
Telephone: (202) 305-0210
Facsimile: (202) 305-0275
Attorneys for FEDERAL DEFENDANTS
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KATHERINE POOLE (SBN 195010)
DOUG OBEGI (SBN 246127)
Natural Resources Defense Council
111 Sutter St., 20th Floor
San Francisco, CA 94104
Telephone: (415) 875-6100
Facsimile: (415) 875-6161
TRENT W. ORR (SBN 77656)
GEORGE M. TORGUN (SBN 222085)
Earthjustice
426 17th Street, 5th Floor
Oakland, CA 94612
Telephone: (510) 550-6725
Facsimile: (510) 550-6749
Attorneys for Defendant-Intervenor
NATURAL RESOURCES DEFENSE
COUNCIL
Attorneys for Defendant-Intervenors
NATURAL RESOURCES DEFENSE
COUNCIL; THE BAY INSTITUTE
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- 10 STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF
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