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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1 COUNSEL IDENTIFICATION AT END 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION 7 THE DELTA SMELT CASES 8 9 10 SAN LUIS & DELTA-MENDOTA WATER AUTHORITY et al. v. SALAZAR et al. (Case No. 1:09-cv-407) 11 12 13 14 15 16 17 18 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) 19 20 21 STEWART & JASPER ORCHARDS et al. v. UNITED STATES FISH AND WILDLIFE SERVICE et al. (Case No. 1:09-cv-892) 22 23 24 25 26 27 28 DIEPENBROCK ELKIN LLP STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF 1 The parties, by and through their respective counsel of record, as identified below, hereby 2 have met and conferred and hereby propose the following schedule for the hearing on Plaintiffs’ 3 Motion for Injunctive Relief scheduled for July 26-29, 2011: 4 1. The parties shall serve and filed their respective exhibit lists on Wednesday, July 5 20, 2011. The exhibit lists shall identify those exhibits to be used for each party’s case-in-chief 6 and need not include exhibits that may be used for demonstrative, cross-examination and/or 7 rebuttal purposes. The exhibit lists shall identify the Administrative Record cite for each exhibit 8 from the Administrative Record. For exhibits not included within the Administrative Record, the 9 parties shall serve on each other copies of the exhibits by email with their exhibit lists or on disks 10 served by overnight delivery for receipt on Thursday, July 21, 2011. Service of exhibits on the 11 Federal Defendants shall be by disk by overnight mail only and not by email. The parties agree 12 to label their exhibits numerically using the following number ranges: 13 Plaintiffs: 0-300 14 Plaintiff-Intervenor: 301-500 15 Federal Defendants: 501-1000 16 Defendant-Intervenors: 1001-1500 17 The parties have agreed to submit Defendants’ Motion to Strike on the papers unless the Court 18 has questions for the parties. The parties respectfully request that the Court rule on the Motion to 19 Strike prior to commencement of argument and evidence on the Motion for Injunctive Relief. 20 The parties propose that time set aside for consideration of the Motion to Strike, inclusive of the 21 time for the Court to share its views on and rule on the motions, and subject to the Court’s 22 concurrence, be from 8:30 a.m. to 9:30 a.m. on July 26, 2011. The time not used by the Court 23 shall be divided evenly between (a) Plaintiffs and Plaintiff-Intervenor on the one hand, and (b) 24 Federal Defendants and Defendant-Intervenors on the other hand. 25 2. Based on the a court day of 8:30 a.m. to 5:00 p.m. each day and the Court’s 26 routine practice of scheduling one 15 minute break each morning, one 90 minute break at lunch, 27 and one 15 minute break each afternoon, the parties anticipate that there will be 25 court hours, 28 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 1 total of 12.5 hours to be used by each side in its discretion among opening statements, 2 arguments, and direct, cross and rebuttal examinations, subject to not exceeding the total hours 3 per side per case. Any party may at its sole discretion cede all or a portion of its time to any 4 other party. 5 3. The parties have met and conferred regarding the order of witnesses. As 6 explained in the Defendants’ pending motion to strike, Defendants’ position is that Plaintiffs’ 7 evidence of alleged irreparable harm is the only evidence that may be considered because the 8 merits of Action 4 have been fully adjudicated and a final judgment has been entered. See 9 Docket No. 947-1. Furthermore, because a likelihood of irreparable harm is a threshold showing 10 that must be made before the Court can issue injunctive relief, Defendants’ position is that 11 Plaintiffs’ testimony regarding alleged irreparable harm (i.e., Mr. Erlewine and Mr. Leahigh) 12 should be presented first, prior to any testimony on the merits (i.e., Drs. Deriso, Burnham, 13 Hanson, and Hutton), because if the Court finds no likelihood of irreparable harm, it need not 14 proceed to the merits witnesses, thereby conserving judicial and party resources. The Court 15 previously noted that such an approach made sense. See Docket No. 790 (summarizing the 16 Court’s comments at a status hearing on Plaintiffs’ previous injunction motion that “it makes 17 sense” for irreparable harm to be adjudicated prior to deciding whether to having the rest of the 18 evidentiary hearing). Plaintiffs do not agree that Messrs. Erlewine and Leahigh should be 19 presented first. They wish to present Drs. Deriso, Burnham, and Hanson first. Notwithstanding 20 Defendants’ objections to presenting merits testimony first, in an effort to conserve judicial and 21 party resources and avoid a scheduling dispute, if the Court is inclined to allow merits testimony 22 to be presented first, Defendants are willing to proceed with Plaintiffs’ preferred order of 23 witnesses as set forth below. 24 objections raised by Defendants to date, including this Court’s jurisdiction to hold an evidentiary 25 hearing and the objections made in Defendants’ pending motion to strike. Defendants believe 26 the Court would be acting well within its discretion to compel Plaintiffs to present testimony 27 from Mr. Erlewine and Mr. Leahigh at the outset of the evidentiary hearing. 28 DIEPENBROCK ELKIN LLP 4. However, this should not be construed as a waiver of any In response to Defendants’ position regarding the order of witnesses, Plaintiffs -2- STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF 1 submit that they have coordinated many schedules of counsel and witnesses to accommodate the 2 wishes of Defendants leading up to these hearings. Plaintiffs do not agree that Defendants 3 should dictate the order that Plaintiffs put on their witnesses for this motion. Plaintiffs brought 4 this motion for interim relief in light of the Court's decision that the RPAs in the BiOp are 5 arbitrary and capricious, including the Fall X2 Action. It is Defendants' decision to proceed with 6 the Fall X2 Action notwithstanding the Court's ruling that has necessitated this hearing. All of 7 the testimony will go to the issue of harm, showing lack of harm to the species as well as the 8 harm to the state's water supply. Accordingly, Plaintiffs submit that the order of witnesses is 9 appropriate, meets individual scheduling needs, and will be the most efficient presentation to the 10 11 Court. 5. The following is the order of opening statements, witnesses and closing 12 arguments. This has been set based on the parties’ best estimates of time for examinations. If 13 the examination of any witness finishes early, the next witness in order will be called to testify, 14 regardless of the date scheduled below. 15 Tuesday, July 26, 2011 16 Opening Statements 17 Dr. Richard Deriso 18 Dr. Kenneth Burnham 19 Dr. Charles Hanson 20 Wednesday, July 27, 2011 21 Dr. Charles Hanson, continued, if necessary 22 Dr. Paul Hutton 23 Mr. John Leahigh 24 Mr. Terry Erlewine 25 Thursday, July 28, 2011 26 Mr. Frederick Feyrer 27 Dr. Matthew Nobriga 28 Dr. Jennifer Norris DIEPENBROCK ELKIN LLP -3STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF 1 Friday, July 29, 2011 2 Dr. Jennifer Norris, continued 3 Plaintiff rebuttal witnesses 4 Closing Arguments 5 6. In addition to the foregoing live testimony, the parties further stipulate that the 6 following witnesses may testify via their previously submitted declarations and that the parties 7 will not raise a hearsay objection against the admissibility of such declarations on the grounds 8 that the declaration is a statement that was made other than while testifying at the trial or 9 hearing: James Snow, David Sunding, Rod Stiefvater, Jeffrey Mettler, Peter Gleick, and Jeffrey 10 Michael. In so stipulating, the parties against whom the declarations have been offered do not 11 stipulate that the facts stated within the declarations are undisputed or waive any other 12 evidentiary objections. 13 7. The parties have agreed that they may submit to the Court and rely upon during 14 the hearing updated evidence regarding project operations, flows, and status and location of the 15 species. SO STIPULATED 16 17 18 19 Dated: July 20, 2011 KRONICK, MOSKOVITZ, TIEDEMANN GIRARD, LLP DIEPENBROCK ELKIN, LLP A Professional Corporation & 20 21 22 23 By: /s/_[Eileen M. Diepenbrock]______________ EILEEN M. DIEPENBROCK Attorneys for Plaintiffs SAN LUIS & DELTA-MENDOTA WATER AUTHORITY AND WESTLANDS WATER DISTRICT 24 25 26 27 28 DIEPENBROCK ELKIN LLP -4STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF 1 Dated: July 20, 2011 BROWNSTEIN HYATT FARBER SCHRECK LLP 2 By: : /s/_[Steve O. Sims] (as authorized) STEVE O. SIMS MICHELLE C. KALES GEOFFREY M. WILLIAMSON Attorneys for Plaintiff WESTLANDS WATER DISTRICT 3 4 5 6 7 Dated: July 20, 2011 BEST BEST & KRIEGER LLP 8 By: 9 10 11 12 13 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 14 15 By: 16 17 18 19 20 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 21 22 23 24 25 26 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 27 28 DIEPENBROCK ELKIN LLP -5STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF 1 Dated: July 20, 2011 KAMALA D. HARRIS, ATTORNEY GENERAL OF THE STATE OF CALIFORNIA 2 3 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 4 5 6 7 8 9 Dated: July 20, 2011 10 11 IGNACIA S. MORENO, ASSISTANT ATTORNEY GENERAL United States Department of Justice, Environmental & Natural Resources Division SETH M. BARSKY, CHIEF 12 13 By: /s/_[Ethan Carson Eddy]_(as authorized)___ ETHAN CARSON EDDY, Trial Attorney Wildlife & Marine Resources Section Attorneys for FEDERAL DEFENDANTS 14 15 16 Dated: July 20, 2011 NATURAL RESOURCES DEFENSE COUNCIL 17 18 By: : /s/_[Katherine Poole]_(as authorized)____ KATHERINE POOLE DOUG OBEGI Attorneys for Defendant-Intervenor NATURAL RESOURCES DEFENSE COUNCIL 19 20 21 22 23 24 25 26 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 27 28 DIEPENBROCK ELKIN LLP -6STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF 1 IT IS SO ORDERED. 2 Dated: July 21, 2011 3 /s/ Oliver W. Wanger THE HONORABLE OLIVER W. WANGER UNITED STATES DISTRICT JUDGE 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 DIEPENBROCK ELKIN LLP -7STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF 1 IDENTIFICATION OF COUNSEL 2 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 3 4 5 6 7 8 9 hac vice) 13 BROWNSTEIN HYATT FARBER SCHRECK LLP 410 17th Street, Suite 2200 Denver, CO 80202 Telephone: (303) 223-1100 Facsimile: (303) 223-1111 14 Attorneys for Plaintiff 10 11 12 Attorneys for Plaintiffs SAN LUIS & DELTA-MENDOTA WATER AUTHORITY and WESTLANDS WATER DISTRICT WESTLANDS WATER DISTRICT 15 16 17 18 19 20 21 22 23 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 24 25 26 27 28 DIEPENBROCK ELKIN LLP -8STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF 1 2 3 4 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 5 6 Attorney for Plaintiff KERN COUNTY WATER AGENCY 7 8 9 10 11 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 12 Attorneys for Plaintiff THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA 13 14 20 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 21 Attorneys for Plaintiff in Intervention 22 CALIFORNIA DEPARTMENT OF WATER RESOURCES 15 16 17 18 19 23 24 25 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 26 27 28 DIEPENBROCK ELKIN LLP -9STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF 1 2 3 4 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 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DIEPENBROCK ELKIN LLP - 10 STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR INJUNCTIVE RELIEF

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