South Yuba River Citizens League et al v. National Marine Fisheries Service et al

Filing 316

ORDER signed by Senior Judge Lawrence K. Karlton on 7/8/2010; ORDERING Plaintiffs' motion for partial summary adjudication as to standing (Dkt. No. 247) is DENIED AS MOOT. Plaintiffs' motion for summary judgment as to liability (Dkt. No. 27 9) is GRANTED IN PART AND DENIED IN PART. Federal Defendants' motion for summary judgment as to liability (Dkt. No. 295) is GRANTED IN PART AND DENIED IN PART. The court GRANTS summary judgment to plaintiffs as to the question of liability on pl aintiffs' third claim. NMFS acted arbitrarily and capriciously in reaching the BiOp's no-jeopardy and no adverse modification conclusions, and in issuing the ITS. Federal Defendants' cross motion is denied on this issue. The court GRAN TS summary judgment to Federal Defendants as to liability on plaintiffs' claim 4A. Plaintiffs' cross motion is denied on this issue. It appears that a disputed question of material fact remains as to plaintiffs' claim 4B, alleging that the Corps violated the terms and conditions of the ITS. Federal Defendants' motion for summary judgment is therefore DENIED as to this claim. Plaintiffs did not seek summary judgment on this issue. Plaintiffs SHALL file a supplemental brief no later than July 23, 2010. This brief shall address a. Whether claim 4B, if successful, would entitle plaintiffs to any remedy beyond that available under claim 3. b. Whether the particular terms of the preliminary injunction requested by plaintiffs a re presently necessary to avoid irreparable injury, in light of Monsanto Co., ___ U.S. ___, 2010 WL 2471057, 2010 U.S. LEXIS 4980. Federal Defendants SHALL file an opposition to the above no later than August 6, 2010. The intervenor defendants MAY f ile concurrent opposition briefs. Plaintiffs MAY file a reply no later than August 13, 2010. This is not a final order as to all claims and all parties for purposes of Fed. R. Civ. P. 54(b). If a party should file an appeal from this non-appealable order, this court is not divested of jurisdiction. Estate of Conners v. OConnor, 6 F.3d 656, 658 (9th Cir. 1993); United States v. Garner, 663 F.2d 834, 838 (9th Cir. 1981).(Matson, R)