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

Filing 348

STIPULATION and ORDER on FINAL REMEDIES PHASE signed by Senior Judge Lawrence K. Karlton on 11/23/2010 re 345 ORDERING that all parties shall refrain from propounding discovery during the final injunctive relief phase of this case. The parties shal l not be required to designate experts or provide reports to use expert testimony relating to the injunctive relief sought during the final remedies phase of this case, as generally required by Rule 26 of the Federal Rules of Civil Procedure. Injunct ive relief in this matter, if warranted, shall be limited to the injunctive relief measures requested in Plaintiffs' 317 proposed order filed with their supplemental briefing. The Biological Opinion and Incidental Take Statement at issue in the case will not be vacated and shall remain in place during any remand period. Nothing in this order precludes Plaintiffs from seeking to recover attorneys' fees and costs at a later date. (Duong, D)

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South Yuba River Citizens League et al v. National Marine Fisheries Service et al Doc. 348 1 REMY, THOMAS, MOOSE and MANLEY, LLP WHITMAN F. MANLEY, 130972 2 HOWARD F. WILKINS III, 203083 455 Capitol Mall, Suite 210 3 Sacramento, California 95814 4 Telephone: (916) 443-2745 Facsimile: (916) 443-9017 5 wmanley@rtmmlaw.com cwilkins@rtmmlaw.com 6 Attorneys for Defendant-Intervenor 7 YUBA COUNTY WATER AGENCY 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SOUTH YUBA RIVER CITIZENS LEAGUE, 12 a non-profit corporation, and FRIENDS OF THE RIVER, a non-profit corporation, 13 Plaintiffs, 14 vs. 15 NATIONAL MARINE FISHERIES SERVICE, 16 CARLOS M. GUTIERREZ, as Secretary of Commerce, et al., 17 ) Civil Case No.: 2:06-CV-02845-LKK-JFM ) ) ) ) ) ) STIPULATION AND ORDER ON FINAL ) REMEDIES PHASE ) ) ) ) ) ) ) ) ) ) ) ) Defendants. 18 CORDUA IRRIGATION DISTRICT, DRY 19 CREEK MUTUAL WATER COMPANY, BROPHY WATER DISTRICT, HALLWOOD 20 IRRIGATION COMPANY, RAMIREZ WATER DISTRICT, and YUBA COUNTY 21 WATER AGENCY, 22 23 24 25 26 27 28 REMY, THOMAS, MOOSE and MANLEY, LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 Defendant-Intervenors. STIPULATION AND [PROPOSED] ORDER ON FINAL REMEDIES PHASE NO.: 2:06-CV-02845-LKK-JFM Dockets.Justia.com 1 WHEREAS, Plaintiffs South Yuba River Citizens League's and Friends of the 2 River's ("Plaintiffs') Sixth Amended Complaint seeks injunctive relief against Defendants 3 United States Army Corps of Engineers et al., ("Federal Defendants") as well as a remand 4 5 6 7 8 9 10 11 12 of the biological opinion at issue in this matter; WHEREAS, Defendant-Intervenors Yuba County Water Agency, Cordua Irrigation District, Dry Creek Mutual Water Company, Brophy Water District, Hallwood Irrigation Company, and Ramirez Water District (collectively "Defendant-Intervenors") have intervened in this case pursuant to the parties' stipulations and this Court's orders on intervention; WHEREAS, On September 2, 2008, the Court granted a stipulation to bifurcate the instant action into a liability phase and a remedy phase. (ECF No. 165). In this stipulation, 13 the parties agreed "to withdraw pending discovery and refrain from serving further 14 discovery and designating experts relating solely to remedies until such time as the Court 15 may issue an order addressing any remedies phase of this case." (Id. at 2); 16 WHEREAS, on July 8, 2010, the Court granted in part and denied in part Plaintiffs' 17 and defendants' motions for summary judgment as to liability. (ECF No. 316). The Court 18 further ordered supplemental briefing on whether preliminary relief was necessary prior to 19 20 21 22 23 24 25 litigation of a final remedy. (Id. at 74); WHEREAS, Plaintiffs filed supplemental briefing in this matter on July 23, 2010. (ECF No. 317). Plaintiffs also submitted a proposed order along with their supplemental briefing. (ECF No. 317-3). While not part of the proposed order, Plaintiffs' supplemental briefing indicated that vacatur of the Biological Opinion was a possible remedy; WHEREAS, Federal Defendants and Defendant-Intervenors filed oppositions to 26 Plaintiffs' Supplemental Briefing (ECF Nos. 321, 322, and 323) and Plaintiffs filed reply 27 briefs (ECF Nos. 325 and 326); 28 1 REMY, THOMAS, MOOSE and MANLEY, LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 STIPULATION AND [PROPOSED] ORDER ON FINAL REMEDIES PHASE NO.: 2:06-CV-02845-LKK-JFM 1 WHEREAS, on November 16, 2010, following supplemental briefing by all parties, 2 the Court denied Plaintiffs' motion for a preliminary injunction without prejudice. (ECF 3 No. 343). The Court also ordered Claim 4B dismissed without prejudice as prudentially 4 5 6 7 8 9 10 moot. The Court further set a status conference in the case for November 22, 2010 at 3:00 p.m. and directed the parties to "be prepared to set a schedule for discovery necessary, if any, for remedy and for briefing final remedy." Id. at 5. The Court also directed all interested parties to submit status reports of no more than five pages by November 18, 2010, id.; WHEREAS, in the Joint Status Report filed on November 18, 2010, the parties 11 notified the Court that they had reached a tentative stipulation regarding discovery and the 12 scope of relief in the remedial phase of this litigation. The parties further represented they 13 would work to finalize the language of this stipulation and would make best efforts to 14 submit a stipulation and proposed order prior to the November 22, 2010 Status Conference 15 (ECF No. 344); 16 17 18 19 20 21 22 23 WHEREAS, all parties agree conducting remedial discovery and disclosure of experts relating to injunctive relief is not necessary if the injunctive relief measures sought in the final remedies phase of this case are limited to the injunctive relief measures sought in Plaintiffs' proposed order filed with their supplemental briefing (ECF No. 317-3) and vacatur of the Biological Opinion and Incidental Take Statement is eliminated as an option during remand; NOW THEREFORE, Plaintiffs South Yuba River Citizens League, et al., 24 defendants National Marine Fisheries Service, et al. and the Intervenor- Defendants Yuba 25 County Water Agency, et al., by and through their respective attorneys of record, hereby 26 stipulate and agree as follows: 27 28 2 REMY, THOMAS, MOOSE and MANLEY, LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 STIPULATION AND [PROPOSED] ORDER ON FINAL REMEDIES PHASE NO.: 2:06-CV-02845-LKK-JFM 1 1. Upon the Court's approval of this stipulation, all parties agree to refrain from 2 serving further discovery and designating experts pursuant to Fed. R. Civ. P. 26(a)(2) 3 addressing the injunctive relief measures sought in the final remedies phase of this case. 4 5 6 7 8 9 10 This provision does not affect the ability of the parties to submit expert declarations with their briefing on final injunctive remedies. 2. Upon the Court's approval of this stipulation, Plaintiffs agree they will not argue or suggest that any relief beyond the particular injunctive relief measures requested in their proposed order filed with their supplemental briefing (ECF No. 317-3) should be granted in this case. However, Plaintiffs reserve the right to revise the dates for 11 implementation of the injunctive relief measures sought and to provide additional specific 12 details on the injunctive relief measures sought. These specific details shall not enlarge the 13 scope of relief sought. 14 3. Upon the Court's approval of this stipulation, all parties further agree not to 15 argue or suggest that the Biological Opinion or Incidental Take Statement at issue in this 16 case should be vacated during remand. 17 18 19 20 21 22 23 24 25 26 Dated: November 22, 2010 27 28 REMY, THOMAS, MOOSE and MANLEY, LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 4. Plaintiffs reserve the right to seek reasonable attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412, or any other applicable authority at a later point after the Court rules on Plaintiffs' request for injunctive relief. Defendants reserve all defenses to any request for attorneys' fees, including as to entitlement and hourly rate. The schedule for proceedings, if any, regarding attorneys fees, will be addressed at a later date. By: /s/ Howard F. Wilkins III HOWARD F. WILKINS III Remy, Thomas, Moose and Manley, LLP 455 Capitol Mall, Suite 210 3 STIPULATION AND [PROPOSED] ORDER ON FINAL REMEDIES PHASE NO.: 2:06-CV-02845-LKK-JFM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Dated: November 22, 2010 19 20 21 22 23 24 25 Dated: November 22, 2010 26 27 28 REMY, THOMAS, MOOSE and MANLEY, LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 Sacramento, CA 95814 Telephone: (916) 443-2745 Facsimile: (916) 443-9017 Email:cwilkins@rtmmlaw.com Attorneys for Defendant-Intervenor YCWA Dated: November 22, 2010 By:_/ s/ Lawson E. Fite (by HFW, as authorized 11/22/10) LAWSON E. FITE, Trial Attorney (Ore. Bar No. 055573) Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7369 Washington, D.C. 20044 Phone: (202) 305-0217 Fax: (202) 305-0275 Email: lawson.fite@usdoj.gov Attorneys for Federal Defendants By:_/ s/ Brian Orion (by HFW, as authorized 11/22/10) BRIAN ORION Environmental Advocates 5135 Anza Street San Francisco, CA 94121 Tel: (415) 277-5758 Fax: (415) 358-5695 borion@enviroadvocates.com Attorneys for Plaintiffs South Yuba River Citizens League and Friends of the River By:_/ s/ Dustin C. Cooper (by HFW, as authorized 11/22/10) DUSTIN C. COOPER Minasian, Spruance, Meith, Soares & Sexton, LLP455 P.O. Box 1679 Oroville, CA 95965 Tel: (530) 533-2885 Fax: (530) 533-0197 Email: dcooper@minasianlaw.com Attorneys for Intervenor-Defendant Cordua Irrigation District By:/ s/ Andrew M. Hitchings (by HFW, as authorized 11/22/10) ANDREW M. HITCHINGS Somach Simmons & Dunn A Professional Corporation 500 Capitol Mall, Suite 1000 Dated: November 22, 2010 4 STIPULATION AND [PROPOSED] ORDER ON FINAL REMEDIES PHASE NO.: 2:06-CV-02845-LKK-JFM 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 Dated: November 22, 2010 Sacramento, CA 95814 Telephone: (916) 446-7979 Facsimile: (916) 446-8199 Email: ahitchings@somachlaw.com Attorneys for Defendant-Intervenors Dry Creek Mutual Water Company, Brophy Water District, and Hallwood Irrigation Company By:/ s/ Hanspeter Walter (by HFW, as authorized 11/22/10) HANSPETER WALTER Kronick, Moskovitz, Tiedemann & Girard A Law Corporation 400 Capitol Mall, 27th Floor Sacramento, CA 95814-4416 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 Email: hwalter@kmtg.com Attorneys for Intervenor-Defendant Ramirez Water District 5 REMY, THOMAS, MOOSE and MANLEY, LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 STIPULATION AND [PROPOSED] ORDER ON FINAL REMEDIES PHASE NO.: 2:06-CV-02845-LKK-JFM 1 2 3 ORDER It is APPROVED and SO ORDERED. All parties shall refrain from propounding 4 discovery during the final injunctive relief phase of this case. The parties shall not be 5 required to designate experts or provide reports to use expert testimony relating to the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injunctive relief sought during the final remedies phase of this case, as generally required by Rule 26 of the Federal Rules of Civil Procedure. Injunctive relief in this matter, if warranted, shall be limited to the injunctive relief measures requested in Plaintiffs' proposed order filed with their supplemental briefing. (ECF No. 317-3). The Biological Opinion and Incidental Take Statement at issue in the case will not be vacated and shall remain in place during any remand period. Nothing in this order precludes Plaintiffs from seeking to recover attorneys' fees and costs at a later date. DATED: November 23, 2010 6 REMY, THOMAS, MOOSE and MANLEY, LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 STIPULATION AND [PROPOSED] ORDER ON FINAL REMEDIES PHASE NO.: 2:06-CV-02845-LKK-JFM 1 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing will be e-filed on November 3 22, 2010, and will be automatically served upon counsel of record, all of whom appear to be 4 subscribed to receive notice from the ECF system. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Howard F. Wilkins III HOWARD F. WILKINS III Remy, Thomas, Moose and Manley, LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 Telephone: (916) 443-2745 Facsimile: (916) 443-9017 cwilkins@rtmmlaw.com Attorneys for Defendant-Intervenor YCWA 7 REMY, THOMAS, MOOSE and MANLEY, LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 STIPULATION AND [PROPOSED] ORDER ON FINAL REMEDIES PHASE NO.: 2:06-CV-02845-LKK-JFM

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