Tolowa Nation v. United States of America, et al

Filing 33

STIPULATION AND ORDER RE 32 re Briefing Schedule and CMC. Signed by Judge Richard Seeborg on 5/8/18. (cl, COURT STAFF) (Filed on 5/8/2018)

1 ALEX G. TSE (CABN 152348)
Acting United States Attorney
2 SARA WINSLOW (DCBN 457643)
Chief, Civil Division
3 PAMELA T. JOHANN (CABN 145558)
Assistant United States Attorney
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450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
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Telephone: [phone]
FAX: [phone]
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[e-mail]
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Attorneys for Federal Defendants
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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TOLOWA NATION,
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Plaintiff,
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v.
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UNITED STATES; UNITED STATES
BUREAU OF INDIAN AFFAIRS; RYAN
ZINKE, Secretary of the Interior; JOHN
TAHSUDA, Acting Assistant Secretary –
Indian Affairs,

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Case No. 17-cv-06478-RS
STIPULATED PROPOSED BRIEFING
SCHEDULE AND REQUEST TO VACATE
INITIAL CASE MANAGEMENT
CONFERENCE AND REMOVE CASE FROM
ADR MULTI-OPTION PROGRAM;
[PROPOSED] ORDER

Defendants.
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The parties, through their undersigned attorneys, hereby jointly submit this proposed schedule

21 for briefing of the parties’ anticipated cross-motions for summary judgment. The parties further request
22 that the Court vacate the Case Management Conference set for May 17, 2018 and remove the case from
23 the ADR Multi-Option Program. This stipulated request is based on the accompanying Declaration of
24 Pamela T. Johann and the following facts:
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1.

Plaintiff’s complaint seeks judicial review on an administrative record pursuant to 5

26 U.S.C. § 706 (the Administrative Procedures Act). The Court’s role is limited to a review of the
27 administrative record. As such, the parties are exempt from initial disclosures under Federal Rule of
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STIPULATED PROPOSED BRIEFING SCHEDULE AND REQUEST TO VACATE CASE MANAGEMENT
CONFERENCE AND REMOVE CASE FROM ADR PROGRAM
3:17-cv-6478-RS
1

1 Civil Procedure 26(a)(1)(B)(i), and discovery is not available in this matter.
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2.

The parties have been meeting and conferring regarding the compilation of the

3 administrative record and have agreed upon a procedure and timetable for the transmittal of the
4 administrative record to Plaintiff. Because of the anticipated size of the administrative record and the
5 fact that parts of it are protected from disclosure under the Privacy Act and subject to a stipulated
6 Protective Order entered by this Court on May 1, 2018, ECF No. 31, the parties have agreed that they
7 will file an appendix containing only the cited portions of the administrative record following the
8 briefing of the summary judgment motions, as set forth below. The parties have agreed that the date by
9 which Federal Defendants shall compile and certify the administrative records, file a notice of
10 certification, and lodge the administrative record with the Plaintiff shall be June 4, 2018.
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3.

The parties have further met and conferred regarding the briefing schedule for the cross

12 motions for summary judgment and hereby jointly propose and stipulate to the following:
a. Last day for Plaintiff to file Motion for Summary Judgment: August 6, 2018, not to

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exceed 35 pages.

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b. Last day for Defendants to file Opposition and Cross Motion for Summary Judgment:

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September 17, 2018, not to exceed 35 pages.

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c. Last day for Plaintiff to file Reply and Cross-Opposition: October 15, 2018, not to

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exceed 25 pages.

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d. Last day for Defendants to file Cross-Reply November 13, 2018, not to exceed 25

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pages.

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e. Last day for parties to file Joint Appendix containing the portion of the administrative

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record cited in the briefing: November 26, 2018.

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f. Hearing on Cross Motions for Summary Judgment: December 20, 2018.

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4.

Because this matter involves only a review of the administrative record, it can be fully

25 resolved by the cross motions for summary judgment. The parties therefore request that the Court
26 vacate the Case Management Conference scheduled for May 17, 2018 and that the parties be relieved
27 from the requirement of submitting a Case Management Statement.
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STIPULATED PROPOSED BRIEFING SCHEDULE AND REQUEST TO VACATE CASE MANAGEMENT
CONFERENCE AND REMOVE CASE FROM ADR PROGRAM
3:17-cv-6478-RS
2

1

5.

In the alternative, if the Court wishes the parties to appear for a case management

2 conference, the parties request that the conference be continued to June 14, 2018. Counsel for Plaintiff
3 is currently scheduled to be in trial in the Sacramento County Superior Court, beginning May 15, 2018.
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6.

The parties further report that they have met and conferred regarding whether the case

5 might benefit from any of the available dispute resolution options provided in this district and have
6 agreed that referral to an ADR process is unlikely to be beneficial because this action is limited to
7 Plaintiff’s request for judicial review on an administrative record. Given the substance of the action and
8 the relief sought, it appears at this time that ADR is unlikely to aid in the resolution of this case and may
9 unnecessarily consume the Court’s time and resources. Accordingly, pursuant to ADR L.R. 3-3(c), the
10 parties hereby stipulate and jointly request that the case be removed from the ADR Multi-Option
11 Program and that they be excused from participating in the ADR phone conference scheduled for May
12 15, 2018, and any further formal ADR process. If any party subsequently determines that submission to
13 the formal ADR process would be beneficial to the efficient resolution of this matter, that party may
14 request placement in one of the Court’s ADR programs at that time.
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7.

In accordance with Civil Local Rule 5(i)(3), the filer of this document attests that all

16 signatories listed below concur in the filing of this document.
17 DATED: May 7, 2018

Respectfully submitted,

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ALEX G. TSE
Acting United States Attorney

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/s/ Pamela T. Johann
PAMELA T. JOHANN
Assistant United States Attorney

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Attorneys for Federal Defendants
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DATED: May 7, 2018
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THE SMITH FIRM
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/s/ Kelly T. Smith
KELLY T. SMITH
Attorneys for Plaintiff Tolowa
Nation

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STIPULATED PROPOSED BRIEFING SCHEDULE AND REQUEST TO VACATE CASE MANAGEMENT
CONFERENCE AND REMOVE CASE FROM ADR PROGRAM
3:17-cv-6478-RS
3

[PROPOSED] ORDER

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Pursuant to the stipulation of the parties, and good cause having been shown, it is hereby ordered

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3 that:
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1.

The Case Management Conference set for May 17, 2018, is hereby vacated, and the

5 parties are relieved from the obligation to file a Joint Case Management Statement;
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2.

Pursuant to ADR L.R. 3-3(c), the parties are hereby removed from the ADR Multi-

7 Option Program and are excused from participating in the ADR phone conference and any further
8 formal ADR process. Should any party subsequently determine that submission to the formal ADR
9 process would be beneficial to the efficient resolution of this matter, that party may request placement in
10 one of the Court’s ADR programs at that time.
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3.

The parties shall adhere to the following briefing schedule and page limits for the

12 anticipated cross-motions for summary judgment:
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a.

exceed 35 pages.

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b.

c.

d.

e.

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Last day for parties to file Joint Appendix containing the portion of the
administrative record cited in the briefing: November 26, 2018.

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Last day for Defendants to file Cross-Reply November 13, 2018, not to exceed 25
pages.

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Last day for Plaintiff to file Reply and Cross-Opposition: October 15, 2018, not to
exceed 25 pages.

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Last day for Defendants to file Opposition and Cross Motion for Summary
Judgment: September 17, 2018, not to exceed 35 pages.

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Last day for Plaintiff to file Motion for Summary Judgment: August 6, 2018, not to

f.

Hearing on Cross Motions for Summary Judgment: December 20, 2018.

IT IS SO ORDERED.

5/8/18
25 DATED:__________________
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THE HON. RICHARD SEEBORG
United States District Judge

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STIPULATED PROPOSED BRIEFING SCHEDULE AND REQUEST TO VACATE CASE MANAGEMENT
CONFERENCE AND REMOVE CASE FROM ADR PROGRAM
3:17-cv-6478-RS
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