Center For Biological Diversity et al v. Export-Import Bank of the United States et al

Filing 59

ORDER by Judge Saundra Brown Armstrong Granting 57 Stipulation for Proposed Schedule (ndr, COURT STAFF) (Filed on 6/2/2014)

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Sarah Uhlemann (WA Bar No. 41164)*
Center for Biological Diversity
2400 NW 80th Street, #146
Seattle, WA 98117
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
*Admitted pro hac vice
Brendan Cummings (CA Bar No. 193952)
Center for Biological Diversity
P.O. Box 549
Joshua Tree, CA 92252
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]

SAM HIRSCH
Acting Assistant Attorney General
U.S. Department of Justice
Environment & Natural Resources Division
KRISTOFOR SWANSON
Trial Attorney
(CO Bar No. 39378)
Natural Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendants
[add’l attorneys in signature block]

Miyoko Sakashita (CA Bar No. 239639)
Center for Biological Diversity
351 California Street, Suite 600
San Francisco, CA 94104
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
CENTER FOR BIOLOGICAL DIVERSITY, ) 4:12-cv-6325 SBA
)
et al.,
) JOINT PROPOSED SCHEDULE AND
) STIPULATION
Plaintiffs,
)
v.
)
)
EXPORT-IMPORT BANK OF THE
)
UNITED STATES, et al.,
)
)
Defendants.

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Joint Proposed Schedule and Stipulation
4:12-cv-6325 SBA

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The Parties hereby update the Court on their discussions regarding the administrative record and

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jointly propose and stipulate to the following schedule for further proceedings in this case:

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Current Procedural Posture
Defendants filed their Motion to Dismiss the First Claim for Relief on November 12, 2013, and

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the motion has been fully briefed since December 10, 2013.1 See ECF No. 41. A hearing on the motion

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was originally scheduled for January 21, 2014 but was removed from the calendar. On May 30, 2014,

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the Parties jointly filed a notice pursuant to Civil L.R. 7-13, as Defendants’ motion has been under

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submission for more than 120 days.
While Defendants’ motion to dismiss has been pending, the Parties have been conferring in an

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attempt to resolve any disputes regarding the administrative record. On December 19, 2013, Defendants

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filed and produced the administrative record and privilege log. Plaintiffs raised several questions and

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concerns regarding the sufficiency of the record and log, and, in response, Defendants agreed to

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supplement and revise the record, indices, and log. In their February 24, 2014 Case Management

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Report, the Parties agreed that Defendants would provide a revised privilege log by February 28, 2014

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and would supplement the record, as appropriate, by March 27, 2014. See ECF No. 50. However, the

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Court continued the March 5, 2014 and May 7, 2014 Telephonic Case Management Conferences and did

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not enter a scheduling order. Defendants provided Plaintiffs with revised administrative record indices

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and a revised privilege log by February 28, 2014, and with supplemental and revised administrative

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record documents over the past several months. Defendants filed a revised and amended administrative

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record with the Court on May 29, 2014.

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Proposed Schedule for Further Proceedings
The Parties believe this case can be resolved on cross-motions for summary judgment based

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upon the administrative record.2 While Plaintiffs do not concede that the scope of the record, including

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Defendants’ motion to dismiss only addresses Plaintiffs’ Endangered Species Act (“ESA”) claim;
Defendants have not moved to dismiss Plaintiffs’ National Historic Preservation Act (“NHPA”) or
Freedom of Information Act (“FOIA”) claims.

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If Defendants rely on redacted information or withheld documents to support their summary judgment
motion, Plaintiffs reserve the right to challenge Defendants’ reliance on and/or privilege designations for
any such documents. Plaintiffs and Defendants further reserve the right to assert, as necessary and
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Joint Proposed Schedule and Stipulation
4:12-cv-6325 SBA

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all redactions and exclusions, is legally sufficient or would be appropriate in other circumstances, the

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Parties have nevertheless agreed that summary judgment briefing can and should proceed as soon as the

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Court resolves Defendants’ pending motion to dismiss.

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Additionally, the Parties recognize that the administrative record contains many very lengthy

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documents. Defendants’ revised and amended administrative record contains nearly 50,000 pages. At

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the November 13, 2013 case management conference, the Court had requested a courtesy hard copy of

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the administrative record. Given the on-going discussions regarding the adequacy of the record, and the

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revisions and amendments thereto, Defendants have not yet provided that courtesy copy. Such a hard

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copy, however, would fill nearly 50 four-inch binders. Rather than burden the Court with that much

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paper, the Parties have agreed and propose that, at the close of summary judgment briefing, Defendants

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will provide the Court with a hard-copy appendix containing those portions of the administrative record

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to which the Parties cite in briefing.

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Based upon the foregoing, the Parties hereby propose and stipulate to the following schedule:

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(1) The Parties will propose a summary judgment briefing schedule within 10 days of the

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Court’s order granting or denying Defendants’ motion to dismiss.
(2) Within the 21-days of the last brief allowed for in the summary judgment briefing schedule,

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Defendants will submit to the Court an appendix containing the administrative record

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documents (or relevant portions thereof) to which the Parties cited.

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Dated: May 30, 2014

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Respectfully submitted,
_s/ Sarah Uhlemann_______
Sarah Uhlemann (WA Bar No. 41164)*
Center for Biological Diversity
2400 NW 80th Street, #146
Seattle, WA 98117
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
*Admitted pro hac vice

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appropriate, any applicable exceptions to the rules governing review based upon an administrative
record and/or any defenses to any such assertions.
Joint Proposed Schedule and Stipulation
4:12-cv-6325 SBA

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Brendan Cummings (CA Bar No. 193952)
Center for Biological Diversity
P.O. Box 549
Joshua Tree, CA 92252
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Miyoko Sakashita (CA Bar No. 239639)
Center for Biological Diversity
351 California Street, Suite 600
San Francisco, CA 94104
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Plaintiffs

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SAM HIRSCH, Acting Assistant Attorney General
U.S. Department of Justice
Environment and Natural Resources Division

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MEREDITH L. FLAX, Senior Trial Attorney
D.C. Bar No. 468016
Wildlife & Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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_s/ Kristofor R. Swanson________
KRISTOFOR R. SWANSON, Trial Attorney
Colo. Bar No. 39378
Natural Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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MELINDA HAAG
UNITED STATES ATTORNEY

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MICHAEL T. PYLE
Assistant U.S. Attorney
150 Almaden Boulevard, Suite 900
San Jose, CA 95113

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Joint Proposed Schedule and Stipulation
4:12-cv-6325 SBA

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Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Attorneys for Defendants

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ATTORNEY ATTESTATION OF CONCURRENCE
I hereby attest that I have obtained concurrence in this filing for the signature of Plaintiffs’
counsel indicated by a “conformed” signature (“/s/”) within this e-filed document.

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DATED: May 30, 2014

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_/s/ _Kristofor R. Swanson__________
Kristofor R. Swanson

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PURSUANT TO STIPULATION, IT IS SO ORDERED:

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___________________
6/2/2014
Date

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___________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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Joint Proposed Schedule and Stipulation
4:12-cv-6325 SBA

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