Friends of the River et al v. U.S. Army Corps of Engineers et al

Filing 84

STIPULATION and ORDER 83 signed by Magistrate Judge Allison Claire on 10/15/13 ORDERING that a stay of the deadline to file the administrative record in this case is issued until Department of Justice attorneys are permitted to resume their usual civil litigation functions. (Kastilahn, A)

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Robert G. Dreher, Assistant Attorney General
Devon Lehman McCune, Trial Attorney
John H. Martin, Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
999 18th Street, South Terrace, Suite 370
Denver, CO 80202
Tel: [phone]
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Defendants
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRIENDS OF THE RIVER, DEFENDERS OF
WILDLIFE, and CENTER FOR BIOLOGICAL
DIVERSITY,

STIPULATION AND PROPOSED
ORDER FOR STAY OF DEADLINE TO
FILE ADMINISTRATIVE RECORD IN
LIGHT OF LAPSE OF
APPROPRIATIONS

Plaintiffs,

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v.
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Case No. 2:11-cv-01650 JAM AC

UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,
Defendants.

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The United States of America hereby requests that this Court enter this stipulation for a
stay of Defendants’ deadline to file the administrative record in the above-captioned case.
1.

On September 12, 2013, Magistrate Judge Claire issued an order providing that

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the United States Army Corps of Engineers (the “Corps”) shall produce the complete and final

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administrative record no later than October 31, 2013. ECF No. 82. This Order provides that

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“[m]odification to the October 31, 2013 deadline shall be made only for extraordinary circumstances.” Id.

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Stipulation for Stay of Deadline to File Admin. R.
in Light of Lapse of Appropriations
Case No. 2:11-cv-01650 JAM AC

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2.

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At the end of the day on September 30, 2013, the appropriations act that had been

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funding the Department of Justice expired and appropriations to the Department lapsed. The

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same is true for most Executive agencies, including the Corps. The Corps is currently able to

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continue limited operations for specified purposes using prior year, non-expiring appropriations,

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primarily for civil works activities. Those prior year appropriations are limited and will be ex-

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hausted at some point. The Department does not know when funding will be restored by Con-

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gress.
3.

Absent an appropriation, Department of Justice attorneys and employees of the

Corps are prohibited from working, even on a voluntary basis, except in very limited circumstances, including “emergencies involving the safety of human life or the protection of property.” 31 U.S.C. § 1342.

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4.

While the Corps has endeavored to continue working toward production of the

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record, Department of Justice employees have been unable to assist in the production due to the
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lapse of appropriations. It is also possible that the Corps attorneys currently working on the administrative record will be furloughed in the near future due to the lapse of appropriations.
5.

Although the administrative record is not due to be filed until October 31, 2013,

there are certain internal deadlines before that date that must be met, including review of the

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privilege log and privileged documents and quality control checks, in order for the record to be

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produced on October 31, 2013.

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6.

Undersigned counsel for the Department of Justice therefore requests a stay of the

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deadline to file the administrative record until Congress has restored appropriations to the De-

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partment. The parties have stipulated that such a stay would be appropriate, given the circum-

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stances.

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7.

If this stipulation for a stay is granted, undersigned counsel will notify the Court

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as soon as Congress has appropriated funds for the Department. The Government requests that,

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at that point, all current deadlines for the parties be extended commensurate with the duration of

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the lapse in appropriations.

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Stipulation for Stay of Deadline to File Admin. R.
in Light of Lapse of Appropriations
Case No. 2:11-cv-01650 JAM AC

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Therefore, although we greatly regret any disruption caused to the Court and the other lit-

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igants, the Government hereby moves and the parties stipulate that a stay of the deadline to file

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the administrative record in this case should be issued until Department of Justice attorneys are

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permitted to resume their usual civil litigation functions.

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Respectfully submitted this 15th day of October, 2013,

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s/ Devon Lehman McCune__________
Devon Lehman McCune, Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Natural Resources Section
999 18th Street, South Terrace Suite 370
Denver, CO 80202
Tel: [phone]
Fax: [phone]
Email: [e-mail]

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John H. Martin, Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
999 18th Street, South Terrace Suite 370
Denver, CO 80202
Tel: [phone]
Fax: [phone]
Email: [e-mail]

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Attorneys for Defendants

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s/ per authorization given on 10/15/2013
Jason Rylander (Pro hac vice)
Defenders of Wildlife
1130 17th Street N.W.
Washington D.C. 20036-4604
Tel: [phone] x145
Fax: [phone]
[e-mail]

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E. Robert Wright (CA Bar No 51861)
Senior Counsel
Friends of the River
1418 20th St., Suite 100
Sacramento, California 95811

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Stipulation for Stay of Deadline to File Admin. R.
in Light of Lapse of Appropriations
Case No. 2:11-cv-01650 JAM AC

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Tel: [phone]
Fax: [phone]

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Lisa T. Belenky (CA Bar No. 203225)
D. Adam Lazar (CA Bar No. 237485)
Center for Biological Diversity
351 California St., Suite 600
San Francisco, CA 94104
[phone] x307
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Plaintiffs
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IT IS SO ORDERED.
DATED: October 15, 2013

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Stipulation for Stay of Deadline to File Admin. R.
in Light of Lapse of Appropriations
Case No. 2:11-cv-01650 JAM AC

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