Center For Biological Diversity et al v. Federal Highway Administration et al

Filing 145

NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on 6/20/13. (jjoS, COURT STAFF) (Filed on 6/20/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CENTER FOR BIOLOGICAL DIVERSITY,
et al.,
Plaintiffs,

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NOTICE OF QUESTIONS FOR
HEARING

v.

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Case No. 12-cv-02172-JSW

CALIFORNIA DEPARTMENT OF
TRANSPORTATION, et al.,

United States District Court
Northern District of California

Defendants.
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE NOTICE OF

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THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON JUNE 21, 2013, AT

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9:00 a.m.

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The Court has reviewed the parties’ memoranda of points and authorities and, thus, unless

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otherwise requested, does not wish to hear the parties reargue matters addressed in those briefs. If

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the parties intend to rely on legal authorities not cited in their briefs, they are ORDERED to notify

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the Court and opposing counsel of these authorities reasonably in advance of the hearing and to

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make copies available at the hearing. If the parties submit such additional authorities, they are

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ORDERED to submit the citations to the authorities only, with pin cites and without argument or

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additional briefing. Cf. N.D. Civ. L.R. 7-3(d). The parties will be given the opportunity at oral

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argument to explain their reliance on such authority. The Court suggests that associates, or of

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counsel attorneys, who are working on this case be permitted to address some or all of the Court’s

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questions contained herein.

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After the parties have answered the following questions, each party may make a five

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minute summation that highlights the most salient points in support of their respective positions on

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the motions for summary judgment:

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1. The Court previously stated that it found a challenge to the 2011 Re-Validation document

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was not adequately alleged in the First Amended Complaint. See Center for Biological

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Diversity v. California Department of Transportation, 2012 WL 5383290, at *8 n.12 (N.D.

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Cal. Nov. 1, 2012). What is the NEPA Plaintiffs’ best argument that their request to

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amend to include a claim based on either of the two re-validation documents is timely?

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2. At the hearing on the motion for a preliminary injunction, the NEPA Plaintiffs argued that

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review under Section 706(1) and 706(2) was the same, i.e. the arbitrary and capricious

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standard. Caltrans did not suggest otherwise. However, in its opposition to the motion,

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Caltrans cites Public Lands for the People, Inc. v. U.S.D.A., which suggests that the
arbitrary and capricious standard would not apply. 733 F. Supp. 2d 1172, 1183 (E.D. Cal.

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United States District Court
Northern District of California

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2010) (noting that Section 706(1) does not incorporate arbitrary and capricious standard).

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a. Assuming the Court concludes that the NEPA Plaintiffs can proceed only under

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Section 706(1), what is their position on the appropriate standard of review, and on

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what authority would they rely?

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3.

It is not this Court’s task to scour the record. See Keenan v. Allan, 91 F.3d 1275, 1279

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(9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995).

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The NEPA Plaintiffs, however, state that there are “numerous changes… described in [the]

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many environmental documents,” that require Caltrans to prepare a supplemental

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environmental impact statement. (See Docket No. 132, Plaintiffs’ Br. at 17:4-7.)

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a. What are the specific changes to which the NEPA Plaintiffs refer?

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b. Do the NEPA Plaintiffs rely solely on the alleged impacts to migratory fish, rare

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plants (Bakers meadowfoam and North Coast semaphore grass), wetlands and land

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management protocols to support their NEPA Claim?

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4. The Court also previously noted that WEC was not a party to the NEPA claim. Center for

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Biological Diversity, 2012 WL 5383290, at *2 n.5. In support of their unclean hands and

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laches defenses, Caltrans makes several arguments regarding WEC’s alleged participation

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in litigating the NEPA claim. (See Docket No. 141, Caltrans Reply Br. at 6:5-7:9.)

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a. How do the NEPA Plaintiffs respond to those arguments, especially in light of the
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fact that Ms. Drell’s most recent declaration specifically refers to Caltrans? (See

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Docket No. 132-1, Declaration of Ellen Drell in Support of Motion for Summary

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Judgment, ¶ 8.)

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b. Does Caltrans have any authority to support the proposition that an alleged breach
of a settlement agreement constitutes inequitable conduct?
c. On what legal authority does Caltrans rely to suggest that the Court may impute the
allegedly inequitable conduct to the NEPA Plaintiffs?

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5. The Plaintiffs have not alleged that the Corps violated NEPA. The Corps determined that

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a supplemental environmental assessment, rather than a supplemental environmental
impact statement, was appropriate because “the new information presented did not rise to

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United States District Court
Northern District of California

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the level of a significant impact on the human environment.” (Corps AR at 303:9576.) In

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analyzing the merits of the NEPA Plaintiffs’ claim against Caltrans, what inference, if any,

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can the Court draw from that conclusion?

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IT IS SO ORDERED.

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Dated: June 20, 2013
______________________________________
JEFFREY S. WHITE
United States District Judge

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