San Luis & Delta-Mendota Water Authority et al v. Jewell et al
Filing
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STIPULATION and ORDER RE: WITNESSES, EXHIBITS AND ORAL ARGUMENT FOR SHOW CAUSE HEARING signed by District Judge Lawrence J. O'Neill on August 19, 2013. (Munoz, I)
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COUNSEL IDENTIFICATION ON FINAL PAGE
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SAN LUIS & DELTA-MENDOTA
WATER AUTHORITY and
WESTLANDS WATER DISTRICT,
vs.
Judge: Honorable Lawrence J. O’Neill
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SALLY JEWELL, as Secretary of the U.S.
Department of the Interior; U.S.
DEPARTMENT OF THE INTERIOR;
U.S. BUREAU OF RECLAMATION;
MICHAEL L. CONNOR, as
Commissioner, Bureau of Reclamation,
U.S. Department of the Interior; and
DAVID MURILLO, as Regional Director,
Mid-Pacific Region, Bureau of
Reclamation, U.S. Department of the
Interior,
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Defendants,
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THE HOOPA VALLEY TRIBE; PACIFIC
COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS;
INSTITUTE FOR FISHERIES
RESOURCES; and YUROK TRIBE,
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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432
BROWNSTEIN HYATT FARBER SCHRECK, LLP
STIPULATION AND ORDER RE:
WITNESSES, EXHIBITS AND ORAL
ARGUMENT FOR SHOW CAUSE
HEARING
Plaintiffs,
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Case No. 13-cv-01232-LJO-GSA
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Date: August 21-23, 2013 at 8:30a.m.
Defendant-Intervenors.
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The parties, by and through their respective counsel of record, as identified below, have
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met and conferred and hereby propose the following for the hearing on Order to Show Cause
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scheduled for August 21-23, 2013:
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1.
By agreement, the parties exchanged witness lists on August 16, 2013. The parties
identified the following witnesses and proposed areas of testimony:
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Federal Defendants:
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A.
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Reclamation – Mr. Reck may testify about Fall-run Chinook life history
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and historic abundance; the 2002 fish die off and conditions in the lower
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Klamath in 2002 and impacts and comparison to conditions in other years;
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conditions that increase risk of fish die off; fish disease and how it affects
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fish in the river and why Reclamation determined that forecasts and
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observations regarding the fishery and conditions in the river required the
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release of the augmentation flow this year; how the increase in Trinity
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releases will address the risk; additional details regarding the determination
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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Donald Reck, Environmental Resource Specialist, U.S. Bureau of
of the quantity of releases needed and effects of flow augmentation on
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other species; 2012 and 2013 environmental analysis of impacts of the flow
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augmentation.
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B.
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Nicholas Hetrick, Fisheries Biologist, US Fish and Wildlife Service – Mr.
Hetrick may testify about Fall-run Chinook life history and historic
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abundance; fish disease and how it affects fish in the river; the fish die off
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and conditions in the lower Klamath in 2002, along with studies conducted
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after this event; how the increase in Trinity releases addresses the
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conditions of concern; development of 2013 flow release recommendation;
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overview of determination of the quantity of releases needed; flows and
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appropriate habitat conditions in the Lower Klamath River that are
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essential for migrating Chinook salmon and flows that are needed to create
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habitat conditions to restore Trinity River fish; 2012 and 2013
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environmental analysis of impacts of the flow augmentation.
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C.
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Ronald Milligan, Manager of the Central Valley Operations Office, U.S.
Bureau of Reclamation – Mr. Milligan may testify about the operations of
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the Central Valley Project and the Trinity River Division in particular, the
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allocation of water to CVP contractors, and potential operational and water
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supply impacts associated with the Trinity River flow augmentation;
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including projected temperature impacts in 2014 to the Sacramento River.
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Defendant-Intervenors Pacific Coast Federation of Fisherman’s Associations,
Institute for Fisheries Resources, The Hoopa Valley Tribe and Yurok Tribe:
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A.
Josh Strange: Josh Strange will testify about 1) his experience with the
Klamath River fish kill, 2) Ich biology and pathology, 3) the natural
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conditions, rationale, evidence supporting, and decision to recommend
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augmented fall flows, 4) the need for and projected effects of augmented
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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432
Klamath and Trinity River fisheries and the causative factors of the 2002
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BROWNSTEIN HYATT FARBER SCHRECK, LLP
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flows in 2013, and 5) the likelihood of non-target negative impacts from
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the necessary flows.
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B.
Michael Belchik: Michael Belchik will testify about 1) his direct
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experience with and subsequent research of the 2002 catastrophic fish kill
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event on the Klamath River, 2) his direct experience and research of 2013
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and prior year river and fish conditions, 3) identifying photos he took of the
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fish kill, 4) update of current Trinity and Klamath River temperature and
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weather conditions, 5) Indian fisheries management and long term effects
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on fish production from a fish kill, and 6) research, rationale, and the need
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for augmented flows to protect anadromous species.
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C.
Michael Orcutt: Orcutt will testify regarding matters in his declaration
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(Doc. 46), the declaration of George Kautsky (Doc. 56), and regarding
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Indian fishing and fish resources.
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Plaintiffs:
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WILL CALL
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A.
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Charles Hanson:
Mr. Hanson is a principal in the firm of Hanson
Environmental, Inc., and has three decades’ experience in matters related to
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the status of fish species in the Klamath and Trinity Rivers and the
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Sacramento River and Sacramento-San Joaquin Delta.
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expected to testify regarding the potential mechanisms contributing to the
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risk of fish die-offs in the lower Klamath River and lack of scientific data
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on this issue; the potential efficacy, or lack thereof, of the Excess Releases
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planned by the Federal Defendants in 2013 to mitigate against the potential
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risk of high mortality of the adult fall-run Chinook salmon; the potentially
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significant adverse effects of the Excess Releases on biological resources;
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and the aquatic communities and fish species in the Trinity, Klamath and
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Mr. Hanson is
Sacramento Rivers generally.
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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432
BROWNSTEIN HYATT FARBER SCHRECK, LLP
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MAY CALL
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B.
Russ Freeman: Mr. Freeman has served as Supervisor of Resources at
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Westlands Water District (“Westlands”) for twelve years. Mr. Freeman
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has a Bachelor of Science degree in civil engineering from University of
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California, Davis, and is a licensed engineer in the state of California. Mr.
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Freeman is expected to testify regarding the various water supply sources
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available to Westlands, Westlands’ CVP supply allocation for the 2013-
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2014 water year and Westlands’ expectations for the 2014-2015 water year.
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Mr. Freeman is further expected to testify regarding the demands of
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Westlands’ customers, and the consequences of reduced CVP allocations to
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the Westland customers and their employees.
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C.
James Snow: Mr. Snow is a professional engineer and has a Bachelor of
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Science degree in civil engineering from California State University,
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Sacramento. Mr. Snow has extensive knowledge of the Central Valley
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Project’s (“CVP”) operations and the water supply available to the CVP.
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Mr. Snow monitors the Bureau of Reclamation’s (“Reclamation”)
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operation of the CVP and its forecast of the CVP operations for Westlands.
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Mr. Snow is expected to testify regarding the likely effects of
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Trinity River in August and September 2013 in an amount up to 109,000
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acre-feet on CVP operations and its effect on the CVP allocation to south
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of Delta water users. Specifically, Mr. Snow is expected to testify that if
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Reclamation did not make the Excess Releases, that water could be used to
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restore 2013 allocations to south-of-Delta agricultural water users whose
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allocation was cut by 5% at the beginning of the year. Mr. Snow is further
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expected to testify that as the Trinity Reservoir is not expected to refill in
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2014, the hole in the Trinity Reservoir created by the Excess Releases will
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likely cause the CVP contract allocations to south-of-Delta agricultural
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DENVER, CO 80202-4432
Reclamation’s planned additional releases (the “Excess Releases”) to the
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BROWNSTEIN HYATT FARBER SCHRECK, LLP
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water users to be lower in 2014 than they would be absent the Excess
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Releases. Mr. Snow will also testify that the hole caused by the Excess
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Releases will negatively impact Reclamation’s management of the cold
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water pool in Shasta Reservoir for the benefit of listed endangered salmon
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species.
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2.
The parties stipulate to the qualification of the above identified witnesses. A
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witness may not offer opinion testimony on subjects beyond the scope of the qualifications stated
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in the declaration, unless additional qualifications are established.
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3.
To the extent a party identified a witness who has not yet submitted a declaration
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in this matter, the party identifying such witness will submit a declaration or report for that
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witness by 5:00 pm PDT Monday, August 19, 2013.
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4.
The parties agree to file and serve their Exhibit Lists and serve electronic copies of
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their exhibits by 5:00 pm PDT Monday, August 19, 2013. Electronic copies of the exhibits may
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be made available on a file transfer protocol (“FTP”) site or exchanged on a flash drive, cd or
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other media by the deadline. The exhibit lists will identify those exhibits to be used for each
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party’s case-in-chief, but need not include exhibits that may be used for demonstrative, cross-
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examination and/or rebuttal purposes. The parties agree to make a good faith effort to identify
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those exhibits to be used solely for cross-examination and/or rebuttal purposes as soon as
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practicable, but failure to identify such exhibits prior to their use will not preclude a party’s use
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thereof subject to the Court’s ruling on any objections. The parties further agree that any power
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point or demonstrative exhibit presented during opening statements or closing arguments will not
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be admissible as evidence unless identified on the party’s exhibit list prior to the hearing. The
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parties agree to an exhibit naming convention whereby each party will choose a unique set of
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letters to identify itself followed by the exhibit number, e.g., Plaintiffs will use SL-1 to SL-25.
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Each party will therefore start with exhibit “1” and proceed numerically. A party presenting a
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witness will not be responsible for providing paper copies of exhibits used with the witness to
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counsel for the other parties during the hearing, unless the exhibit was not provided to other
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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432
BROWNSTEIN HYATT FARBER SCHRECK, LLP
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counsel electronically on August 19, 2013.
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The parties agree to file and serve any objections to other parties’ exhibits, except
relevancy objections, no later than Noon PDT Tuesday, August 20, 2013.
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The parties agree to provide notice to the Court by August 20, 2013 of the parties’
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proposal regarding time allocation. Federal Defendants and Defendant-Intervenors will present
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their case-in-chief first in light of the Court’s August 14, 2013 Order directing the Federal
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Defendants to appear and Show Cause.
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7.
In addition to the foregoing live testimony, the parties further stipulate that the
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previously submitted declarations may be considered as evidence in the Show Cause hearing
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pursuant to Fed. R. Civ. P. 43(c), and further that the parties will not raise a hearsay objection
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against the admissibility of such declarations on the grounds that the declaration is a statement
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that was made other than while testifying at the trial or hearing. In so stipulating, the parties
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against whom the declarations have been offered do not stipulate that the facts stated within the
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declarations are undisputed or waive any other evidentiary objections, including hearsay within
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hearsay objections.
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8.
The parties agree that any declarant may be subpoenaed for cross examination,
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however the parties do not anticipate the need to cross examine all prior declarants. In order to
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provide an opportunity to cross examine key declarants, the parties agree to make available for
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examination without subpoena, any declarant a party has identified as a witness in paragraph 1.
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The parties agree to make both “will call” and “may call” witnesses available all three days of the
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hearing with the exception of Russ Freeman who is not available to testify on August 21, 2013.
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Any party may examine such declarants during their case-in-chief; but should they fail to do so,
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and the witness is not called by the party that identified them, the declaration of that uncalled
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witness/declarant may continue to be used as evidence.
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9.
The parties do not anticipate filing any pre-trial motions.
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SO STIPULATED
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Dated: August 16, 2013
KRONICK, MOSKOVITZ, TIEDEMANN
& GIRARD, A Law Corporation
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/s/ Daniel J. O’Hanlon
DANIEL J. O’HANLON
Attorneys for Plaintiffs
SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY and WESTLANDS WATER
DISTRICT
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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432
BROWNSTEIN HYATT FARBER SCHRECK, LLP
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Dated: August 16, 2013
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
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/s/ Steven O. Sims (as authorized)
STEVEN O. SIMS
Attorneys for Plaintiff
WESTLANDS WATER DISTRICT
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Dated: August 16, 2013
EARTHJUSTICE
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/s/ Jan Hasselman (as authorized)
JAN HASSELMAN
Attorney for Defendant-Intervenor Applicants
PACIFIC COAST FEDERATION OF
FISHERMENS’ ASSOCIATIONS AND
INSTITUTE FOR FISHERIES RESOURCES
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Dated: August 16, 2013
YUROK TRIBE, OFFICE OF THE TRIBAL
ATTORNEY
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/s/ John Corbett (as authorized)
JOHN CORBETT
Attorneys for Defendant-Intervenor
YUROK TRIBE
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Dated: August 16, 2013
MORISSET, SCHLOSSER, JOZWIAK &
SOMERVILLE
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/s/ Thomas P. Schlosser (as authorized)
THOMAS P. SCHLOSSER
Attorneys for Defendant-Intervenor
HOOPA VALLEY TRIBE
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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432
BROWNSTEIN HYATT FARBER SCHRECK, LLP
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Dated: August 16, 2013
ANNA K. STIMMEL, Trial Attorney
Environmental & Natural Resources Division
Natural Resources Section and ROBERT G.
DREHER, Acting Assistant Attorney General,
United States Department of Justice,
Environmental & Natural Resources Divisions
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/s/ Anna K. Stimmel (as authorized)
ANNA K. STIMMEL
Attorneys for FEDERAL DEFENDANTS
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IT IS SO ORDERED
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Dated: August 19, 2013.
/s/ Lawrence J. O’Neill
United States District Judge
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COUNSEL IDENTIFICATION
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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
Attorneys for Plaintiff
WESTLANDS WATER DISTRICT
KRONICK, MOSKOVITZ, TIEDEMANN
& GIRARD
400 Capitol Mall, 27th Floor
Sacramento, CA 95814-4416
Telephone: (916) 321-4500
Facsimile: (916) 321-4555
Attorneys for Plaintiffs
SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY; WESTLANDS WATER
DISTRICT
DANIEL J. O’HANLON, SBN: 122380
ERIC N. ROBINSON, SBN: 191781
REBECCA R. AKROYD, SBN: 267305
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
By: s/ Daniel J. O’Hanlon
DANIEL J. O’HANLON
Attorneys for Plaintiffs
SAN LUIS & DELTA-MENDOTA
WATER AUTHORITY; WESTLANDS
WATER DISTRICT
By: s/Steven O. Sims
STEVEN O. SIMS
Attorneys for Plaintiff
WESTLANDS WATER DISTRICT
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410 SEVENTEENTH STREET, SUITE 2200
DENVER, CO 80202-4432
BROWNSTEIN HYATT FARBER SCHRECK, LLP
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DANIEL J. O’HANLON (SBN 122380)
ERIC N. ROBINSON (SBN: 191781)
REBECCA R. AKROYD (SBN 267305)
STEVE O. SIMS (Admitted Pro Hac Vice)
GEOFFREY M. WILLIAMSON (Admitted
Pro Hac Vice)
MICHELLE C. KALES (Admitted Pro Hac
Vice)
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