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

Filing 82

NOTICE OF QUESTIONS FOR HEARING. Signed by Judge Jeffrey S. White on October 11, 2012. (jswlc3, COURT STAFF) (Filed on 10/11/2012)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

CENTER FOR BIOLOGICAL DIVERSITY,
et al.,

10

No. C 12-02172 JSW

11

NOTICE OF QUESTIONS FOR
HEARING

v.
For the Northern District of California

United States District Court

Plaintiff,
12
13
14

FEDERAL HIGHWAY ADMINISTRATION,
et al.,
Defendants.
/

15
16

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

17

THE FOLLOWING QUESTIONS FOR THE HEARING SCHEDULED ON OCTOBER 12,

18

2012, AT 9:00 A.M.:

19

The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

20

reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

21

cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

22

authorities reasonably in advance of the hearing and to make copies available at the hearing. If

23

the parties submit such additional authorities, they are ORDERED to submit the citations to the

24

authorities only, with reference to pin cites and without argument or additional briefing. Cf.

25

N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to

26

explain their reliance on such authority. The Court suggests that associates or of counsel

27

attorneys who are

28

1

working on this case be permitted to address some or all of the Court’s questions contained

2

herein.

3

1.

Does Caltrans have an up to date estimate of when construction on the Willits Bypass

4

Project is scheduled to start, other than those set forth in the Declaration of David G.

5

Kelley?

6

2.

7
8

Are Plaintiffs seeking injunctive relief based on their second claim for relief, violations
of Section 404 of the Clean Water Act?

3.

9

In their FAC, Plaintiffs cite to 5 U.S.C. § 706(2) as the basis for judicial review of
Defendants’ actions. The Army Corps of Engineers argues that Plaintiffs cannot
establish a likelihood of success on the merits, because, in its view, this case does not

11
For the Northern District of California

United States District Court

10

involve a request to hold unlawful or set aside agency action. Rather, it is a case that

12

involves a request to compel agency action unlawfully withheld or unreasonably

13

delayed. See 5 U.S.C. § 706(1).

14

a.

15
16

What is Plaintiffs’ response to this argument, and is this a situation where
Defendants are elevating form over substance?

4.

Mr. Kelley attests a “Phasing the construction of the Willits Bypass is not a new

17

development,” and attests that “Chapter 6 of the Project Report was dedicated to

18

discussing the possible need for and description of a phased project.” (Kelley Decl., ¶

19

24.)

20

a.

21
22

Is the “Project Report” referenced in this paragraph in the existing record and, if
so, where?

5.

Mr. Collison attests that trees and vegetation will be “topped,” while Mr. Kelley attests

23

that trees will be “removed.” (Compare Collison Decl., ¶ 5 with Kelley Decl., ¶ 9.) Is it

24

correct that some trees will be removed completely, rather than merely topped?

25

6.

Caltrans argues that Plaintiffs’ NEPA claim would be barred by the doctrine of laches.

26

At what point in this process would Caltrans suggest the Court begin to measure the

27

alleged delay? See, e.g., Apache Survival Coalition v. United States, 21 F.3d 895, 908

28
2

1

n.4 (9th Cir. 1994) (noting that court has not announced a “general rule for determining

2

the appropriate point from which laches runs in the environmental context”).

3

a.

Setting aside the issue of whether Caltrans could prevail on an affirmative

4

defense of laches, does Caltrans also argue that the Court should consider

5

whether Plaintiffs’ unduly delayed in bringing the motion for a preliminary

6

injunction?

7

7.

Caltrans argues that the balance of equities tips sharply in its favor, because it has

8

awarded the contract for the Willits Bypass Project and, as a result, could suffer

9

significant delay costs if the Court enjoins construction. This case was filed in May
2012, but the contract was not awarded until August 2012. Did Caltrans and the

11
For the Northern District of California

United States District Court

10

contractor account for the possibility of an injunction in the contract? If so, what are the

12

terms of that provision?

13

8.

If the Court grants Plaintiffs’ motion, what amount of bond do Defendants propose

14

Plaintiffs’ post and what is the basis of that amount?

15

IT IS SO ORDERED.

16

Dated: October 11, 2012
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
3