Sacramento Municipal Utility District v. United States Department of the Interior, et al.

Filing 12

STIPULATION and ORDER signed by District Judge Troy L. Nunley on 5/15/13 ORDERING that this Case shall be STAYED until and including 9/9/2013. In the event that the action is not resolved on or before 9/9/13, the parties are ordered to submit a supplemental joint status report proposing dates for hearing of anticipated motions and a briefing schedule by 10/9/13. (Mena-Sanchez, L)

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DOWNEY BRAND LLP
STEVEN P. SAXTON (Bar No. 116943)
DAVID E. LINDGREN (Bar No. 35079)
MEREDITH E. NIKKEL (Bar No. 254818)
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]

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DOWNEY BRAND LLP

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ARLEN R. ORCHARD (Bar No. 143015)
General Counsel
LESLIE A. DUNSWORTH (Bar No. 172175)
Chief Assistant General Counsel
6201 S. Street, M.S. B406, P.O. Box 15830
Sacramento, CA 95852
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff SACRAMENTO MUNICIPAL
UTILITY DISTRICT

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO MUNICIPAL UTILITY
DISTRICT,

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Plaintiff,

Case No. 2:12–cv–03112-TLN-EFB
STIPULATION AND ORDER TO STAY
ACTION

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v.
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UNITED STATES DEPARTMENT OF
THE INTERIOR; KENNETH LEE
SALAZAR, in his official capacity as
Secretary of the Interior; UNITED
STATES BUREAU OF RECLAMATION;
MICHAEL L. CONNOR, in his official
capacity as the Commissioner of
Reclamation, and DAVID MURILLO, in
his official capacity as Regional Director of
the Bureau of Reclamation for the MidPacific Region,

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Defendants.
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1315648.6

STIPULATION AND [PROPOSED] ORDER TO STAY

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Plaintiff Sacramento Municipal Utility District (“SMUD”) and Defendants United States

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Department of the Interior, Kenneth Lee Salazar, United States Bureau of Reclamation, Michael

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L. Conner and David Murillo (“Defendants”), by and through their counsel of record, hereby

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stipulate and agree as follows:

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RECITALS

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A.

In 1970, SMUD entered into a 42-year contract (the “Original Contract”) with the

United States for the delivery of water through the Folsom-South Canal (the “Canal”) to supply

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cooling water to SMUD’s Cosumnes Power Plant. For several years leading up to the expiration

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of the Original Contract on December 31, 2012, the parties negotiated the terms of a renewal of

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the Original Contract but failed to reach agreement regarding Defendants’ ratesetting under the

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Original Contract and ratesetting terms for a renewal contract. However, SMUD believes the

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DOWNEY BRAND LLP

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water supplied to SMUD through the Canal is essential to the operation of the Cosumnes Power

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Plant and critical to the provision of electricity in SMUD’s service area. Accordingly, on

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December 26, 2012, SMUD executed under protest an Interim Renewal Contract effective

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January 1, 2013 through February 28, 2015.

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B.

On December 28, 2012, SMUD filed a complaint in the United States District

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Court for the Eastern District of California pursuant to the Administrative Procedure Act, 5

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U.S.C. § 701 et seq., challenging Defendants’ ratesetting and contract renewal actions that relate

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to the Original Contract and the Interim Renewal Contract.

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C.

Since the Complaint was filed, the parties have continued to engage in negotiations

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regarding Defendants’ ratesetting under the Original Contract and the terms of a long-term

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renewal contract. The parties have committed substantial time, personnel, and resources to these

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negotiations. The parties have met multiple times and have made progress towards reaching

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terms of mutual agreement that would result in dismissal of the action.

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D.

The parties desire additional time to engage in these ongoing negotiations and

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potentially resolve the issues raised in the Complaint. Accordingly, the parties enter into this

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Stipulation to avoid potentially unnecessary litigation while the parties negotiate ratesetting under

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the Original Contract and terms of a renewal contract.
1315648.6

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STIPULATION AND ORDER TO STAY

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STIPULATION

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NOW, THEREFORE, the parties agree as follows:

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1.

All further proceedings in this matter, United States District Court for the Eastern

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District of California Case Number 2:12–cv–03112-TLN-EFB, shall be stayed until and including

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September 9, 2013 so as to allow time for continued negotiations between the parties and

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potential resolution of the action.

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2.

The parties will file contemporaneously with this Stipulation a Joint Status Report

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outlining the proceedings that the parties anticipate will occur in the event that the matter is not

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resolved by September 9, 2013. If no such resolution is obtained by September 9, 2013, then the

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parties agree to prepare and file a supplemental joint status report with proposed dates for hearing

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of anticipated record preparation, motions, and a briefing schedule by October 9, 2013.

DOWNEY BRAND LLP

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3.

The parties expressly preserve all claims, defenses, objections, or legal arguments

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they have or may have in the above-entitled action. The parties’ Stipulation and the stay of the

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above-entitled action shall not affect or impact the parties’ claims, defenses, objections, or

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arguments.

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IT IS SO STIPULATED.

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DATED: May 9, 2013

DOWNEY BRAND LLP

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By:

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/s/ Steven P. Saxton
STEVEN P. SAXTON
DAVID E. LINDGREN
MEREDITH E. NIKKEL
Attorneys for Plaintiff

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DATED: May 9, 2013

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BENJAMIN B. WAGNER
UNITED STATES ATTORNEY

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By:

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/s/ Edward A. Olsen
EDWARD A. OLSEN
Assistant United States Attorney
Attorneys for Defendants

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1315648.6

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STIPULATION AND ORDER TO STAY

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ORDER

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Based on the stipulation of the parties and good cause appearing therefor, the Court

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ORDERS as follows:

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1.

Further proceedings in the above-entitled action, United States District Court for

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the Eastern District of California Case Number 2:12–cv–03112-TLN-EFB shall be stayed until

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and including September 9, 2013.

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2.

In the event that the action is not resolved on or before September 9, 2013, the

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parties are ordered to submit a supplemental joint status report proposing dates for hearing of

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anticipated motions and a briefing schedule by October 9, 2013.

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3.

The parties preserve all claims, defenses, objections, and legal arguments they

have or may have in the above-entitled action. The parties’ Stipulation and the stay of the above-

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DOWNEY BRAND LLP

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entitled action shall not affect or impact the parties’ claims, defenses, objections, or arguments in

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connection therewith.

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IT IS SO ORDERED.

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DATED:

May 15, 2013

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Troy L. Nunley
United States District Judge

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1315648.6

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STIPULATION AND ORDER TO STAY