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

Filing 601

STIPULATION and ORDER re: Exhibits, Witnesses and Oral Argument for Motion for Preliminary Injunction, signed by Judge Oliver W. Wanger on 3/16/2011. (Kusamura, W)

1 2 3

COUNSEL IDENTIFICATION ON FINAL PAGE

UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 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 HARRISON
A PROFESSIONAL CORPORATION

CONSOLIDATED SALMON CASES SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al. v. GARY F. LOCKE, et al. (Case No. 1:09-cv-1053) STOCKTON EAST WATER DISTRICT v. NOAA, et al. (Case No. 1:09-cv-1090) STATE WATER CONTRACTORS v. GARY F. LOCKE, et al. (Case No. 1:09-cv-1378) KERN COUNTY WATER AGENCY, et al. v. U.S. DEPARTMENT OF COMMERCE, et al. (Case No. 1:09-cv-1520) OAKDALE IRRIGATION DISTRICT, et al. v. U.S. DEPARTMENT OF COMMERCE, et al. (Case No. 1:09-cv-2452) METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA v. NMFS, et al. (Case No. 1:09-cv-1625)

CASE NOS. 1:09-cv-1053-OWW-DLB 1:09-cv-1090-OWW-DLB 1:09-cv-1378-OWW-DLB 1:09-cv-1520-OWW-DLB 1:09-cv-2452-OWW-DLB 1:09-cv-1625-OWW-SMS STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR PRELIMINARY INJUNCTION Judge: Honorable Oliver W. Wanger Date: March 23-25, 2011

The parties, by and through their respective counsel of record, as identified below, have met and conferred and hereby propose the following schedule for the hearing on Plaintiffs' Motion for Injunctive Relief scheduled for March 23-25, 2011: 1. The parties shall serve and file their respective witness and exhibit lists by 5:00

p.m. Wednesday, March 16, 2011. The exhibit lists shall identify those exhibits to be used for each party's case-in-chief, including case-in-chief demonstrative exhibits, and need not include exhibits that may be used for cross-examination and/or rebuttal purposes, including demonstrative exhibits that may be used for cross-examination and/or rebuttal purposes. The exhibit lists shall identify the Administrative Record cite for each exhibit from the Administrative Record, or the -1STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR PRELIMINARY INJUNCTION

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
DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

docket number if previously filed with the Court's ECF system. For exhibits not included within the Administrative Record or previously filed with the Court's ECF system, the parties shall serve on each other copies of the exhibits by email with their exhibit lists or on disks served by overnight delivery for receipt on Thursday, March 17, 2011, except that case-in-chief demonstrative exhibits shall be served for their receipt by 5:00 p.m. Monday, March 21, 2011. The parties agree to label their exhibits numerically using the following number ranges: Plaintiffs: 0-400 Plaintiff-Intervenor Department of Water Resources: 401-500 Federal Defendants: 501-1000 Defendant-Intervenors: 1001-1500 2. The parties anticipate that they will offer and rely upon during the hearing updated

testimony and information regarding project operations, flows, and the status and location of the species that includes or is based on data that was not available when the declarations and exhibits were filed and served. Nothing in this stipulation is intended to preclude admission of such evidence, provided the possibility of such evidence is noted in the parties' exhibit lists filed and served on March 16, 2011. 3. Given the proximity of the hearing dates to the April 1, 2011 automatic trigger of

RPA Action IV.2.1, the Plaintiffs and Plaintiff-Intervenor intend to seek a motion for temporary restraining order on Action IV.2.1. The parties have agreed, subject to Court approval, to an abbreviated motion and briefing schedule for such motion, as follows: Plaintiffs and PlaintiffIntervenor shall file a notice and request for the temporary restraining order by 5:00 p.m. on Wednesday, March 16, and shall rely on their briefing on the motion for preliminary injunction to support such motion and shall not file any additional evidence in support of the temporary restraining order; Defendants and Defendant-Intervenors shall rely on their briefing opposing the motion for preliminary injunction to oppose such motion, except to the extent that Defendant and Defendant-Intervenors intend to raise additional objections or defenses to such motion; any additional defenses or objections to the request for temporary restraining order shall be filed by 5:00 p.m. on Monday, March 21, 2011, shall not include additional evidence, and shall be limited -2STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR PRELIMINARY INJUNCTION

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
DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

to one page. The parties agree, subject to Court approval, that the Court may rule on the requested temporary restraining order from the bench at the conclusion of the hearing on Friday, March 25, 2011. Any bench ruling granting the requested temporary restraining order will expire at the end of the 14 day period set forth in Fed. R. Civ.P. 65(b)(2), unless before that time the Court, for good cause, affirmatively extends the order for a like period. As required by Fed. R. Civ. P. 65(b)(2), the reasons for an extension must be entered in the record. 4. The parties have agreed to submit the Federal Defendants' Motion to Strike, in

which Defendant-Intervenors have joined, on the papers unless the Court has questions for the parties. As that motion is not directed against witnesses who will be presenting live testimony per paragraph 5 below, the parties respectfully request that the Court reserve its ruling on the motion until it issues its decision on the motion for preliminary injunction. The time not used by the Court for any questions on the motion to strike shall be divided evenly between (a) Plaintiffs and Plaintiff-Intervenor on the one hand, and (b) Federal Defendants and Defendant-Intervenors on the other hand. 5. Based on a court day of 8:30 a.m. to 5:00 p.m. each day and the Court's routine

practice of scheduling one 15 minute break each morning, one 90 minute break at lunch, and one 15 minute break each afternoon, the parties anticipate that there will be 19.5 court hours for evidence and argument. Therefore, each side will be allocated a total of 9.75 hours to be used by each side in its discretion among opening statements, arguments, and direct, cross and rebuttal examinations, subject to (1) the witness availability issues that are included in the order of witnesses below and (2) not exceeding the total hours per side per case. Any party may at its sole discretion cede all or a portion of its time to any other party. 6. The following is the order of opening statements, witnesses and closing arguments. If the

This has been set based on the parties' best estimates of time for examinations.

examination of any witness finishes early, the next witness in order will be called to testify, regardless of the date scheduled below, except that per witness availability, Mr. Steve Cramer shall testify on March 24. March 23, 2011 -3STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR PRELIMINARY INJUNCTION

1 2 3 4 5

Opening Statements Terry Erlewine Jim Snow Bradley Cavallo March 24, 2011

6 Steve Cramer 7 Jeffrey Stuart 8 Steve Cramer Rebuttal 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

March 25, 2011 Paul Fujitani Dr. Cameron Speir Dr. David Sunding Plaintiff and Plaintiff-Intervenor rebuttal witnesses Closing Arguments 7. The parties' rebuttal witnesses shall be limited to witnesses who provided

declarations in support of the parties' briefs in support of, or in opposition to, the motions for preliminary injunction. 8. In addition to the foregoing live testimony, the parties further stipulate that the

following witnesses may testify via their previously submitted declarations and that the parties will not raise a hearsay objection against the admissibility of such declarations on the grounds that the declaration is a statement that was made other than while testifying at the trial or hearing: Russ Freeman, Dr. Frank Gornick, Daniel G. Nelson, Robert Silva, Todd Allen, Joe Del Bosque, Chris Hurd, Andy Souza, Margaret Beckett, William F. "Zeke" Grader, Gary Hayward Slaughter Mulcahy, Peter Grenell, and Richard Pool. In so stipulating, the parties against whom the declarations have been offered do not stipulate that the facts stated within the declarations are undisputed or waive any other evidentiary objections. 9. As the evidence and written and oral arguments regarding the merits previously -4STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR PRELIMINARY INJUNCTION

1 2 3 4 5 6 7 8 9 10 11

have been presented to the Court as part of the parties' respective motions for summary judgment, heard by the Court on December 16 and 17, 2010, the parties further stipulate that they may rely upon, and are not required to re-present, that evidence and those arguments for their respective positions on the "likelihood of success" element of the pending motion for preliminary injunction and motion for temporary restraining order, and that such arguments and evidence shall be limited to the Court's consideration of the Plaintiffs' and Plaintiff-Intervenors' likelihood of success on the merits. However, Defendants and Defendant-Intervenors restate their objection to the Court's reliance on extra-record testimony and evidence for purposes of evaluating Plaintiffs' and Plaintiff-Intervenors' likelihood of success on the merits of their Administrative Procedure Act claims. SO STIPULATED Dated: March 16, 2011 DIEPENBROCK HARRISON A Professional Corporation KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation By /s/ Eileen M. Diepenbrock EILEEN M. DIEPENBROCK DANIEL J. O'HANLON Attorneys for Plaintiffs SAN LUIS & DELTAMENDOTA WATER AUTHORITY and WESTLANDS WATER DISTRICT

12 13 14 15 16 17 18 Dated: March 16, 2011 19 20

BROWNSTEIN HYATT FARBER SCHRECK LLP

By 21 22 23 Dated: March_16, 2011 24 25 By 26 27 28
DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

/s/ Steven O. Sims STEVEN O. SIMS MICHELLE C. KALES Attorneys for Plaintiffs WESTLANDS WATER DISTRICT

BEST BEST & KRIEGER, LLP

/s/ Gregory K. Wilkinson GREGORY K. WILKINSON STEVEN M. ANDERSON Attorneys for Plaintiff STATE WATER CONTRACTORS -5-

STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR PRELIMINARY INJUNCTION

Dated: March_16, 2011 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
DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

MORRISON & FOERSTER, LLP

-6STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR PRELIMINARY INJUNCTION

1 By 2 3 4 5 6 7 8 9 10 11 12 13 By 14 15 16 17 18 19 20 21 By 22 23 24 25 26 27 28
DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

/s/ Christopher J. Carr CHRISTOPHER J. CARR WILLIAM M. SLOAN Attorneys for Plaintiff METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA

Dated: March_16, 2011

NOSSAMAN LLP

By

/s/ Paul S. Weiland PAUL S. WEILAND AUDREY HUANG Attorneys for Plaintiffs KERN COUNTY WATER AGENCY and COALITION FOR A SUSTAINABLE DELTA

Dated: March_16, 2011

KAMALA D. HARRIS Attorney General of the State of California

/s/ Clifford T. Lee CLIFFORD T. LEE CECILIA L. DENNIS ALLISON GOLDSMITH Deputies Attorney General Attorneys for Plaintiff in Intervention CALIFORNIA DEPARTMENT OF WATER RESOURCES

Dated: March_16, 2011

IGNACIA S. MORENO, Assistant Attorney General United States Department of Justice Environment & Natural Resources Division SETH M. BARSKY, Section Chief

/s/ Bridget Kennedy McNeil BRIDGET KENNEDY McNEIL, Trial Attorney Wildlife and Marine Resources Section Attorneys for FEDERAL DEFENDANTS

Dated: March_16, 2011

NATURAL RESOURCES DEFENSE COUNCIL

By

/s/ Katherine S. Poole KATHERINE S. POOLE DOUG OBEGI Attorneys for Defendant-Intervenor NATURAL RESOURCES DEFENSE COUNSEL -7-

STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR PRELIMINARY INJUNCTION

1 2 3 4 5 6 7 8 9 10 11

Dated: March_16 2011

EARTHJUSTICE

By

/s/ Erin M. Tobin MICHAEL R. SHERWOOD ERIN M. TOBIN Attorneys for Defendant-Intervenors CALIFORNIA TROUT, FRIENDS OF THE RIVER, NATURAL RESOURCES DEFENSE COUNCIL, NORTHERN CALIFORNIA COUNCIL OF THE FEDERATION OF FLY FISHERS, PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS/INSTITUTE FOR FISHERIES RESOURCES, SACRAMENTO RIVER PRESERVATION TRUST, SAN FRANCISCO BAYKEEPER, THE BAY INSTITUTE, WINNEMEM WINTU TRIBE

IT IS SO ORDERED. 12 13
DEAC_Signature-END:

Dated:

March 16, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DIEPENBROCK HARRISON
A PROFESSIONAL CORPORATION

emm0d64h

-8STIPULATION AND ORDER RE: EXHIBITS, WITNESSES AND ORAL ARGUMENT FOR MOTION FOR PRELIMINARY INJUNCTION