Center For Biological Diversity et al v. Bureau of Land Management et al
Filing
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ORDER GRATING: 213 STIPULATION WITH PROPOSED ORDER REGARDING FURTHER PROCEEDINGS filed by American Sand Association, Bureau of Land Management, United States Fish & Wildlife Service, California Association of 4 Wheel Drive Cl ubs, Desert Vipers Motorcycle Club, California Off-Road Vehicle Association, Desert Survivors, Sierra Club, Center For Biological Diversity, American Motorcycle Association District 37, San Diego Off Road Coalition, Public Employees f or Environmental Responsibility, Off-Road Business Association, BlueRibbon Coalition, High Desert Multiple Use Coalition. Motion Hearing set for 1/31/2014 09:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston.. Signed by Judge Susan Illston on 8/5/13. (tfS, COURT STAFF) (Filed on 8/6/2013)
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ROBERT G. DREHER
Acting Assistant Attorney General
KEVIN W. McARDLE, Senior Attorney (D.C. Bar No. 454569)
United States Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Benjamin Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tele: (202) 305-0219/Fax: (202) 305-0275
kevin.mcardle@usdoj.gov
AYAKO SATO, Trial Attorney
United States Department of Justice
Environment & Natural Resources Division
Natural Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tele: (202) 305-0239/Fax: (202) 305-0506
Ayako.Sato@usdoj.gov
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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CENTER FOR BIOLOGICAL DIVERSITY, et al.,
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Plaintiffs,
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Case No. 3:03-cv-02509-SI
STIPULATION AND PROPOSED
ORDER REGARDING
FURTHER PROCEEEDINGS
v.
BUREAU OF LAND MANAGEMENT, et al.,
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Federal Defendants,
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and
AMERICAN SAND ASSOCIATION, et al.,
Defendant-Intervenors.
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STIPULATION RE FURTHER PROCEEDINGS
U.S. Department of Justice
Environment & Natural Resources Division
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Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI
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To establish an orderly schedule for accelerated further proceedings in this matter, and to
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avoid a dispute over preliminary injunctive relief, the parties, through undersigned counsel, and
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subject to the Court’s approval, hereby state as follows pursuant to Civil L.R. 7-12:
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WHEREAS, claims four through eight of Plaintiffs’ Second Amended Complaint (ECF
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No. 147) challenged: (1) the U.S. Fish and Wildlife Service’s (“Service”) January 25, 2005
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Biological Opinion (“2005 BiOp”) regarding the U.S. Bureau of Land Management’s (“BLM”)
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management of the Imperial Sand Dunes Recreation Area under the 2003 Recreation Area
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Management Plan (“RAMP”); (2) BLM’s Environmental Impact Statement (“EIS”) for the
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RAMP; (3) BLM’s March 24, 2005 Record of Decision (“2005 ROD”) approving the RAMP;
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and (4) the Service’s August 4, 2004 final rule designating critical habitat for the Peirson’s milk-
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vetch (“Critical Habitat Rule”);
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WHEREAS, the parties filed cross-motions for summary judgment on claims four
through eight in Plaintiffs’ Second Amended Complaint;
WHEREAS, on March 14, 2006, the Court issued an opinion and order granting in part
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and denying in part each party’s motion for summary judgment (ECF No. 174), and finding that
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Federal Defendants “have failed to comply with federal environmental statutes in a number of
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important respects,” ECF No. 174 at 3;
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WHEREAS, the Court held that the Service’s 2005 BiOp violated the Endangered
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Species Act by: “permit[ting] significant declines in the population of the already-threatened
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Peirson’s milk-vetch before instituting any mitigating measures”; “fail[ing] to explain how
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continued and expanded habitat degradation of almost half of the designated critical habitat for
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the Peirson’s milk-vetch does not result in ‘adverse modification’”; and including an incidental
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take statement for the desert tortoise that “does not contain a meaningful standard by which
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incidental take can be measured” and “fail[ing] to include required ‘terms and conditions’
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regarding how to minimize the potential for incidental take,” ECF No. 174 at 3;
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WHEREAS, the Court further held that the Service’s decision to exclude certain areas
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from the Critical Habitat Rule was inadequately supported and contrary to the ESA, ECF No.
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174 at 3;
STIPULATION RE FURTHER PROCEEDINGS
U.S. Department of Justice
Environment & Natural Resources Division
-2-
Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI
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WHEREAS, the Court also held that the EIS for the 2003 RAMP violated the National
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Environmental Policy Act by eliminating the interim closures that have been in place since
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November 2000 from the range of alternatives evaluated and by failing to take a hard look at the
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impact of the RAMP on endemic invertebrates, ECF No. 174 at 3-4;
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WHEREAS, on September 26, 2006, the Court issued its Order and Injunction Regarding
Final Relief (ECF No. 192) (“Remedy Order”);
WHEREAS, in relevant part, the Remedy Order: vacated and remanded the 2005 ROD
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and EIS; vacated and remanded portions of the 2005 BiOp and incidental take statement (with
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conditions); remanded the 2003 RAMP; remanded the Service’s exclusions from the Critical
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Habitat Rule (with conditions); and directed the Service to submit a new final critical habitat rule
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to the Federal Register for publication no later than February 1, 2008;
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WHEREAS, paragraphs 5-7 of the Remedy Order provide, in relevant part, as follows:
5.
Notwithstanding any contrary provision of the 2005 ROD, 2003 RAMP, or
the FEIS, BLM shall maintain the vehicle closures as identified in the “Temporary
Closure of Approximately 49,300[] Acres to Motorized Vehicle Use of Five Selected
Areas in the ISDRA,” 66 Fed. Reg. 53,431-02 (Oct. 22, 2001) (“Temporary
Closure”)…
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6.
All injunctive relief shall expire 90 days after [BLM]’s issuance of a new
ROD approved after the completion of appropriate levels of land-use planning,
environmental analysis, and consultation pursuant to NEPA, [the Federal Land Policy
and Management Act], and the ESA…
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7.
BLM and [the Service] shall provide plaintiffs and defendant-intervenors
with copies of relevant final documents and file a Notice with this Court indicating that
the documents have been issued. Within 90 days of the filing of the Notice, plaintiffs
and defendant-intervenors may file a response, if any, to the Notice explaining why the
terms of this Order should continue…
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WHEREAS, on February 14, 2008, the Service’s new critical habitat designation for the
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Peirson’s milk-vetch was published in the Federal Register, 73 Fed. Reg. 8748 (Feb. 14, 2008);
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WHEREAS, the 2008 critical habitat designation was upheld in response to legal
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challenges brought by the Plaintiffs in this case and others, see Maddalena v. U.S. Fish &
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Wildlife Serv., No. 3:08-cv-02292-H-AJB (S.D. Cal. Aug. 5, 2010);
STIPULATION RE FURTHER PROCEEDINGS
U.S. Department of Justice
Environment & Natural Resources Division
-3-
Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI
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WHEREAS, in June 2013, BLM issued a new ROD and RAMP for the ISDRA (“2013
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ROD”), which was preceded by BLM’s preparation of a new EIS pursuant to NEPA and the
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completion of consultation with the Service pursuant to ESA Section 7(a)(2), which resulted in
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the Service’s issuance of a new Biological Opinion on November 2, 2012 (“2012 BiOp”);
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WHEREAS, on June 17, 2013, Federal Defendants filed a Notice of the issuance of the
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ROD and supporting documents, including the new EIS and 2012 BiOp, and provided copies of
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the documents to the Plaintiffs and Defendant-Intervenors pursuant to paragraph 7 of the
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Remedy Order;
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WHEREAS, Plaintiffs have indicated that they intend to file a new pleading challenging
the new ROD and supporting documents;
WHEREAS, Plaintiffs have also indicated that they intend to file a response to the Notice
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explaining why the terms of the Remedy Order should continue and, in addition or in the
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alternative, seek preliminary injunctive relief pending a ruling on the merits of their challenge to
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the June 2013 ROD and supporting documents;
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WHEREAS, the parties subsequently entered into negotiations for a procedure whereby
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paragraph 5 of the Remedy Order would remain in effect while Plaintiffs’ challenge to the June
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2013 ROD and supporting documents is resolved on an expeditious basis, thereby avoiding the
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need for emergency proceedings and conserving the resources of the parties and the Court;
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WHEREAS, BLM desires to obtain a resolution of Plaintiffs’ challenge to the June 2013
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ROD and supporting documents as soon as possible, and in advance of April 15, 2014, to allow
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sufficient time for implementation of the ROD and public education prior to the periods of high
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use of the ISDRA commencing in the fall of 2014;
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NOW, THEREFORE, the parties hereby stipulate and agree as follows:
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1.
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Plaintiffs shall file a new pleading challenging the June 2013 ROD and supporting
documents on or before September 16, 2013.
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Federal Defendants shall file the administrative records for the June 2013 ROD
and the 2012 BiOp on or before September 20, 2013
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STIPULATION RE FURTHER PROCEEDINGS
U.S. Department of Justice
Environment & Natural Resources Division
-4-
Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI
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3.
Federal Defendants and Defendant-Intervenors shall file their answers or other
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responses to Plaintiffs’ new pleading, if required under the Federal Rules of Civil Procedure, on
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or before October 15, 2013.
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4.
Plaintiffs shall file their motion for summary judgment on or before October 18,
2013. Plaintiffs’ supporting memorandum of points and authorities shall not exceed 25 pages.
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Federal Defendants shall file a combined cross-motion for summary judgment and
opposition to Plaintiffs’ motion, not to exceed 25 pages, on or before November 15, 2013.
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Intervenor-Defendants shall file a combined cross-motion for summary judgment
and opposition to Plaintiffs’ motion, not to exceed 25 pages, on or before November 15, 2013.
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Plaintiffs shall file a single combined opposition and reply to the summary
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judgment briefs described in paragraphs 5 and 6, not to exceed 20 pages, on or before December
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6, 2013.
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8.
Federal Defendants shall file a reply brief, not to exceed 15 pages, on or before
December 20, 2013.
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Intervenor-Defendants shall file a reply brief, not to exceed 15 pages, on or before
December 20, 2013.
10.
Notwithstanding any contrary provision of the June 2013 ROD or supporting
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documents, paragraph 5 of the Remedy Order shall remain in effect until the Court issues a
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ruling on the parties’ cross-motions for summary judgment or April 15, 2014, whichever occurs
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first. While Paragraph 5 of the Remedy Order remains in effect, BLM shall not be required to
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implement any provision of the June 2013 ROD or supporting documents. However, nothing in
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this Stipulation precludes BLM, in its sole discretion, from implementing any provision of the
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ROD or supporting documents that is not inconsistent with paragraph 5 of the Remedy Order.
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11.
Plaintiffs shall not pursue any preliminary or provisional injunctive relief
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involving the ISDRA or the claims contained in the new pleading prior to the Court’s ruling on
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cross-motions for summary judgment or April 15, 2014, whichever occurs first.
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STIPULATION RE FURTHER PROCEEDINGS
U.S. Department of Justice
Environment & Natural Resources Division
-5-
Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI
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12.
The parties respectfully request that the Court issue a ruling on the parties’ cross-
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motions for summary judgment as soon as possible after briefing is complete and in advance of
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April 15, 2014, if possible.
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DATED:
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/s/ Brendan R. Cummings
(with permission by Kevin W. McArdle)
Brendan R. Cummings
Center for Biological Diversity
P.O. Box 549
Joshua Tree, CA 92252
760-366-2232
Fax: 760-366-2669
bcummings@biologicaldiversity.org
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August 2, 2013
Respectfully submitted,
ROBERT G. DREHER
Acting Assistant Attorney General
/s/ Kevin W. McArdle
KEVIN W. McARDLE, Trial Attorney
United States Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Benjamin Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tele: (202) 305-0219/Fax: (202) 305-0275
kevin.mcardle@usdoj.gov
Kevin.McArdle@usdoj.gov
/s/ Lisa T. Belenky
(with permission by Kevin W. McArdle)
Lisa T. Belenky
Center for Biological Diversity
351 California Street , Suite 600
San Francisco, CA 94104
415-436-9682 ext. 307
Fax: 415-436-9683
lbelenky@biologicaldiversity.org
/s/ Ayako Sato
AYAKO SATO, Trial Attorney
United States Department of Justice
Environment & Natural Resources Division
Natural Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Tele: (202) 305-0239/Fax: (202) 305-0506
Ayako.Sato@usdoj.gov
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Attorneys for Defendants
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/s/ Paul A. Turcke
(with permission by Kevin W. McArdle)
Paul A. Turcke
Moore Smith Buxton & Turcke
950 West Bannock Street, Suite 520
Boise, ID 83702
208/331-1807
pat@msbtlaw.com
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Attorney for Defendant-Intervenors Blue
Ribbon Coalition, California Association of 4
Wheel Drive Clubs, San Diego Off Road
Coalition, Desert Vipers Motorcycle Club, and
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STIPULATION RE FURTHER PROCEEDINGS
U.S. Department of Justice
Environment & Natural Resources Division
-6-
Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI
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High Desert Multiple Use Coalition
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/s/ David P. Hubbard
(with permission by Kevin W. McArdle)
David P. Hubbard , Esq.
Gatzke Dillon & Ballance LLP
1525 Faraday Avenue, Suite 150
Carlsbad, CA 92008
(760) 431-9501
dhubbard@gdandb.com
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Attorney for Defendant-Intervenors Off-Road
Business Association, California Off-Road
Vehicle Association, and American Sand
Association
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5th
August
Pursuant to Stipulation, IT IS SO ORDERED this ___ day of __________________, 2013
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_________________________________
HON. SUSAN ILLSON
UNITED STATES DISTRICT JUDG
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This matter has been scheduled for argument on Friday,
January 31, 2014, at 9:00 a.m.
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STIPULATION RE FURTHER PROCEEDINGS
U.S. Department of Justice
Environment & Natural Resources Division
-7-
Washington, D.C. 20044-7611
Case No. 3:03-cv-02509-SI
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