California Native Plant Society, Defenders of Wildlife et al v. United States Environmental Protection Agency et al

Filing 257

ORDER STAYING CASE UNTIL JANUARY 17, 2011 AND VACATING NOVEMBER 18, 2010 STATUS CONFERENCE re 256 Status Report filed by United States Fish And Wildlife Service, United States Army Corps Of Engineers, United States Environmental Proctection Agency. Signed by Judge Phyllis J. Hamilton on 11/17/10. (nah, COURT STAFF) (Filed on 11/17/2010)

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IGNACIA S. MORENO Assistant Attorney General United States Department of Justice Environment & Natural Resources Division ERIK PETERSEN Trial Attorney, D.C. Bar No. 489073 Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Tel. [phone] Fax: [phone] [e-mail] CAROL L. DRAPER Trial Attorney, PA Bar No. 39388 Natural Resources Section, P.O. Box 663 Washington, D.C. 20044-0663 Tel: [phone] Fax: [phone] [e-mail] MEREDITH WEINBERG Trial Attorney, VA Bar No. 47516 Environmental Defense Section, P.O. Box 23986 Washington, D.C. 20026-3986 Tel. [phone]; Fax: [phone] [e-mail] ATTORNEYS FOR FEDERAL DEFENDANTS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CALIFORNIA NATIVE PLANT SOCIETY, et al., ) Case No. 4: 06-CV-3604 PJH ) Plaintiffs, ) STATUS REPORT ) SUBMITTED BY ) FEDERAL DEFENDANTS v. ) ) UNITED STATES ENVIRONMENTAL ) Judge: Honorable Phyllis J. Hamilton PROTECTION AGENCY, et al., ) ) Defendants. ) ) Pursuant to the Order dated December 2, 2008 (Dkt. # 245), the Federal Defendants, United States Environmental Protection Agency, United States Fish and Wildlife Service, and

Federal Defendants= Status Report Submitted November 15, 2010 Case No. 06-3604 (PJH)

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United States Army Corps of Engineers (Corps or USACE), submit this Report on the status of the Corps= preparation of an Environmental Impact Statement (EIS) for the Sunridge Properties Project (Sunridge EIS) under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq: 1. This action has been stayed since December 2, 2008 pending the Corps= completion of the Sunridge EIS, with the Corps reporting its progress to the Court at six-month intervals. Order dated Dec. 2, 2008. 2. The stay ends on November 17, 2010, and the parties are scheduled to attend a status conference with the Court on November 18, 2010 at 2:30 p.m. PST. 3. The Corps has completed the Sunridge EIS on schedule. On October, 15, 2010, the Corps issued the Final Sunridge EIS for a thirty day public review and comment period that ends on November 15, 2010. 4. As previously reported (See Dkt. #251), the Sunridge EIS analyzes programmatically the potential environmental effects of implementing alternatives for six residential development projects collectively referred to as the "Sunridge Properties" which are located in Rancho Cordova, Sacramento County, California. The EIS was prepared as part of this ongoing litigation concerning Department of the Army permits issued by the USACE between 2005 and 2007 for five of the projects and a pending permit decision for the sixth. The permitted projects are: Anatolia IV (Permit No. 199400210), Sunridge Village J (Permit No. 200100230), Grantline 208 (Permit No. 199400365), Douglas Road 98 (Permit No. 200200568), and Douglas Road 103 (Permit No. 199700006). The Corps has not yet issued a permit decision for the sixth project, Arista del Sol (Permit No. 200400458).
Federal Defendants= Status Report Submitted November 15, 2010 2 Case No. 06-3604 (PJH)

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5. As part of the analysis of the cumulative effects and incremental impacts of other past, present and reasonably foreseeable future actions, the Sunridge EIS also considered the three other projects challenged in this litigation, North Douglas, Montelana, and Sunridge Park, but did not address those projects as part of the primary evaluation. 6. Following the 30-day comment period that ends November 15, 2010, the Corps will reach a Record of Decision ("ROD") based on the findings and conclusions in the Sunridge EIS. 7. The Corps anticipates issuing a ROD based on the Sunridge EIS on or before January 15,

8. Federal Defendants propose staying this action for an additional 60 days until January 17, 2010 so that the parties have the benefit of the ROD in determining how they would like to proceed with this litigation. 9. Following issuance of the ROD, the Corps anticipates reviewing and supplementing, as appropriate, the Environmental Assessments (EAs) prepared in connection with the previouslyissued permits challenged in this action (listed in paragraph 4 above). 10. The preliminary injunction issued by the Court on July 10, 2007 ("Findings of Fact and Conclusions of Law in Support of Order Granting Plaintiffs' Motion for Preliminary Injunction," Dkt. #128) remains in effect. The Court suspended and enjoined "the force and effect of the Section 404(b) permits for the North Douglas, Montelana, Douglas Road 98, Sunridge Park, Anatolia IV, Sunridge Village J, and Grantline 208 projects . . . pending resolution of this matter on the merits." Id. at 35:18-21. The Court further ordered that "any construction, groundbreaking, earthmoving, or other on-the-ground activity that may affect vernal pool habitat or endangered or threatened species, taken in reliance on the Section 404(b) permits for the North Douglas, Montelena, Douglas Road 98,
Federal Defendants= Status Report Submitted November 15, 2010 3 Case No. 06-3604 (PJH)

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Sunridge Park, Anatolia IV, Sunridge Village J, and Grantline 208 projects is hereby enjoined pending resolution of the merits of this case." Id. at 35:22-26. 11. Following the July 10, 2007 Order, the Court issued an Order dated August 2, 2007 (Dkt. #140) adopting the parties' proposed stipulation with regard to the Corps' permitting activities for the Douglas Road 103 and Arista del Sol projects and issued an Order dated August 24, 2007 (Dkt. # 147) amending the July 10, 2007 Order to exclude the Montelena, North Douglas, and Sunridge Park projects from the preliminary injunction. WHEREFORE, Federal Defendants respectfully request that the Court consider extending the stay of this litigation until January 17, 2011 pending the Corps= issuance of the Record of Decision based on the Sunridge Properties EIS. The November 18, 2010 Status Conference is VACATED. Dated: November 15, 2010 Respectfully submitted, IGNACIA S. MORENO Assistant Attorney General United States Department of Justice /s/ Carol L. Draper CAROL L. DRAPER, Trial Attorney Natural Resource Section ERIK PETERSEN, Trial Attorney Wildlife & Marine Resources Section MEREDITH WEINBERG, Trial Attorney Environmental Defense Section Attorneys for Federal Defendants

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OF COUNSEL: Lisa Clay U.S. Army Corps of Engineers 1325 J Street Room 1340 Sacramento, California 95814
Federal Defendants= Status Report Submitted November 15, 2010 4 Case No. 06-3604 (PJH)

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Thomas Hagler U.S. Environmental Protection Agency, Region 9 75 Hawthorne St., Mail Code ORC-2 San Francisco, CA 94105 Veronica Rowan FWS Office of the Regional Solicitor U.S. Department of the Interior 2800 Cottage Way Room E-1712 Sacramento, CA 95825-1890

Federal Defendants= Status Report Submitted November 15, 2010 5 Case No. 06-3604 (PJH)

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CERTIFICATE OF SERVICE I hereby certify that on November 15, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification to the counsel of record. /s/ Carol L. Draper CAROL L. DRAPER

Federal Defendants= Status Report Submitted November 15, 2010 6 Case No. 06-3604 (PJH)