Our Children's Earth Foundation et al v. National Marine Fisheries Service et al

Filing 36

STIPULATION AND ORDER Continuing Case Management Conference. Case Management Statement due by 8/29/2014. Case Management Conference set for 9/5/2014 10:00 AM in Courtroom 1, 17th Floor, San Francisco. Signed by Judge Samuel Conti on 07/23/2014. (tmi, COURT STAFF) (Filed on 7/23/2014)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

MELINDA HAAG (CSBN 132612)
United States Attorney
ALEX G. TSE (CABN 152348)
Chief, Civil Division
MICHAEL T. PYLE (CSBN 172954)
Assistant United States Attorney
150 Almaden Boulevard, Suite 900
San Jose, California 95113
Telephone: [phone]
FAX: [phone]
[e-mail]
SAM HIRSCH,
Acting Assistant Attorney General
SETH M. BARSKY, Chief
COBY HOWELL, Senior Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
c/o U.S. Attorney’s Office
1000 S.W. Third Avenue
Portland, OR 97204
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorneys for Federal Defendants

18

UNITED STATE DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20
21
22
23
24
25

OUR CHILDREN’S EARTH
FOUNDATION, a non-profit corporation,
and ECOLOGICAL RIGHTS
FOUNDATION, a non-profit corporation,
Plaintiffs,
v.

26
27
28

NATIONAL MARINE FISHERIES
SERVICE, PENNY PRITZKER, as
Secretary of Commerce, RODNEY
MCINNIS, as Regional Administrator of

)
)
)
)
)
)
Civil Case No.: 3:14-cv-01130-MEJ
)
) JOINT CASE MANAGEMENT
) STIPULATION AND PROPOSED ORDER
)
)
)
)
)

1
2
3

the National Marine Fisheries Service
Southwest Region, UNITED STATES
FISH AND WILDLIFE SERVICE, and
SALLY JEWELL, as Secretary of the
Interior,

4
5

Defendant.

)
)
)
)
)
)
)

6
7
8
9

On May 15, 2014, the Clerk of Court issued an order requiring the parties to file their

10

case management statement no later than August 1, 2014, and setting the case management

11

conference for August 8, 2014. ECF No. 22. At the parties’ request, the Court subsequently

12

issued another order directing Federal Defendants to file their responsive pleading to Plaintiffs’

13

amended complaint and administrative record for the Administrative Procedure Act (“APA”)

14

claim challenging the 2008 National Marine Fisheries Service (“NMFS”) biological opinion no

15

later than July 18, 2014. ECF No. 29.

16

NMFS is in the process of issuing a new biological opinion on the U.S. Army Corps of

17

Engineers’ section 404 Clean Water Act permit (“2014 biological opinion”) and the parties agree

18

that this new biological opinion will moot Plaintiffs’ existing APA claim challenging the 2008

19

biological opinion. NMFS currently anticipates that the 2014 biological opinion will be

20

complete by mid-August, 2014. If NMFS issues the 2014 biological opinion, Plaintiffs will

21

voluntarily dismiss their APA claim challenging the 2008 biological opinion.

22

The parties have discussed this new development and believe the following stipulated

23

schedule is the most efficient manner for the Court and parties to pursue this case. Thus, the

24

parties stipulate and respectfully request the Court to amend the scheduling order as follows:

25
26
27
28

1. If the Federal Defendants do not issue the 2014 biological opinion by September 15,
2014, the Federal Defendants shall file their responsive pleading to Plaintiffs’ amended
complaint on that date;

1
2

2. The case management statement is currently due on August 1, 2014, and is rescheduled
August 29, 2014.
for August 22, 2014.

3

3. The case management conference set for August 8, 2014 is rescheduled to
September 05, 2014
10:00 AM
______________________________at ___________.1

4
5

4. If NMFS has not issued the 2014 biological opinion by September 15, 2014, NMFS shall

6

submit a status report to the Court explaining its progress toward issuance of the 2014

7

biological opinion and stating its projections as to when it will issue the 2014 biological

8

opinion.

9

5. If NMFS has not issued the 2014 biological opinion by October 15, 2014, NMFS shall

10

lodge the administrative record for the 2008 biological opinion with the Court by

11

November 1, 2014.

12
Pursuant to stipulation, it is so ORDERED.
S

R NIA

___________________________________

15

The Honorable Samuel Conti
NO

onti

RT

U.S. District Court Judge
ER

A

Dated: July 15, 2014.

H

17

FO

amuel C

Judge S

LI

16

18

07/23/2014

UNIT
ED

14

RT
U
O

13

ISTRIC
ES D
TC
AT
T

N

F
D IS T IC T O
R

C

19
20

Respectfully Submitted,

21
MELINDA HAAG
UNITED STATES ATTORNEY
MICHAEL T. PYLE
Assistant U.S. Attorney

22
23
24

SAM HIRSCH,
Acting Assistant Attorney General
SETH M. BARSKY, Chief

25
26
27
28

1

The parties respectfully request a case management conference to be rescheduled for
September 5, 2014, or a date convenient for the Court.

/s/ Coby Howell
COBY HOWELL
Senior Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
c/o USAO
1000 S.W. Third Avenue
Room 600
Portland, OR 97204
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

1
2
3
4
5
6
7
8
9

Attorneys for Federal Defendants
10
11
By permission:
Christopher Sproul
Attorney for Plaintiffs Our Children’s Earth
Foundation and Ecological Rights
Foundation

12
13
14
15

By Permission:/s/ Sarah Flanagan
Sarah G. Flanagan
Pillsbury Winthrop Shaw Pittman LLP
Attorneys for Defendant-Intervenor The
Board of Trustees of the Leland Stanford
Junior University

16
17
18
19
20
21

CERTIFICATE OF SERVICE

22
23
24
25
26
27
28

I certify that on July 15, 2014, the foregoing will be electronically filed with the Court’s
electronic filing system, which will generate automatic service upon on all Parties enrolled to
receive such notice.
/s/ Coby Howell
Coby Howell