State of California et al v. Trump et al

Filing 209

JOINT STATUS REPORT Proposing Briefing Schedule For Summary Judgment Motions on Claims Related to 10 U.S.C. § 2808 by Department of Defense, David Bernhardt, Mark T. Esper, Kevin K. McAleenan, Ryan D. McCarthy, Steven T. Mnuchin, Richard V. Spencer, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of the Interior, U.S. Department of the Treasury, United States of America, Heather Wilson. and all Plaintiffs. (Attachments: # 1 Proposed Order)(Warden, Andrew) (Filed on 9/13/2019) Modified on 9/16/2019 (jjbS, COURT STAFF).

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JOSEPH H. HUNT
Assistant Attorney General
JAMES M. BURNHAM
Deputy Assistant Attorney General
ALEXANDER M. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
ANDREW I. WARDEN (IN #23840-49)
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]

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Attorneys for Defendants

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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STATE OF CALIFORNIA, et al.,
Plaintiffs,

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v.
DONALD J. TRUMP, et al.,

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Defendants.

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JOINT STATUS REPORT
PROPOSING BRIEFING
SCHEDULE FOR SUMMARY
JUDGMENT MOTIONS ON
CLAIMS RELATED TO 10 U.S.C.
§ 2808

SIERRA CLUB, et al.,

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No. 4:19-cv-00872-HSG
No. 4:19-cv-00892-HSG

Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants.

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Status Report re: § 2808 Schedule
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Status Report re: § 2808 Schedule
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On July 18 and 19, 2019, this Court issued separate orders in the above-captioned cases
staying the summary judgment briefing schedule for claims based on 10 U.S.C. § 2808 and
instructed the parties to submit a proposed schedule for briefing on such claims within 10 days
of a decision by the Acting Secretary of Defense concerning § 2808 border-barrier projects. See
Order Staying Summary Judgment Briefing Schedule on Claims Related to 10 U.S.C. § 2808,
ECF No. 200 in 4:19-cv-00872 and ECF No. 197 in 4:19-cv-00892-HSG.
On September 3, 2019, Defendants filed a notice of the decision by the Secretary of
Defense to authorize eleven border barrier projects in California, Arizona, New Mexico, and
Texas pursuant to 10 U.S.C. § 2808. See Notice of Decision by the Department of Defense to
Authorize Border Barrier Projects Pursuant to 10 U.S.C. §2808, ECF No. 206 in in 4:19-cv00872 and ECF No. 201 in 4:19-cv-00892-HSG. This filing represents that ground-disturbing
activities in the first border barrier project authorized pursuant to 10 U.S.C. § 2808 within the
boundaries of the Plaintiff States is San Diego Project 4. See id., Ex. 3 ¶ 10.b. The soonest any
ground-disturbing activity will begin for San Diego Project 4 is November 22, 2019. See id.
On September 12, 2019, the parties conferred and largely agreed on a briefing schedule
and page limits for summary judgment motions on Plaintiffs’ claims relating to 10 U.S.C.
§ 2808, but were unable to reach agreement on the date for Plaintiffs’ opening brief. The
proposed schedule along with competing dates for Plaintiffs’ opening brief is as follows:

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DATE

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September 16
Plaintiff States’ proposed date: October 11
Defendants’ proposed date: October 7

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October 25

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Nov. 1
Nov. 8
Nov. 18

EVENT
Lodge Administrative Record
Plaintiffs’ Motions for Summary Judgment
(35 pages)
Defendants’ Cross-Motions for Summary
Judgment and Oppositions to Plaintiffs’
Motion (35 pages)
Plaintiffs’ Replies and Oppositions to
Defendants’ Motions (25 pages)
Defendants’ Replies (25 pages)
Hearing

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Status Report re: § 2808 Schedule
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Status Report re: § 2808 Schedule
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The parties’ respective positions on the date for Plaintiffs opening brief are set forth
below and a proposed order is attached.
Organizational Plaintiffs’ Position
The Organizational Plaintiffs consent to proceed under either the State Plaintiffs’
proposed schedule or the Defendants’ proposed schedule.
Plaintiff States’ Position

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Plaintiff States request that their opening brief be due on October 11. Plaintiff States

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must evaluate, for the first time, eleven different border barrier projects and numerous defunded

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military construction projects. While the Defendants request approximately three weeks for

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each side to file their briefs, the access to information regarding these projects has not been

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equal. Plaintiff States have had no information about the eleven different border barrier

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projects or the numerous defunded military construction projects prior to September 3. Even

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now, Plaintiff States have requested additional information from Defendants regarding the

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border barrier projects and do not have an administrative record to evaluate. In contrast,

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Defendants announced their general intent to defund these military construction projects and

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build these border barriers pursuant to 10 U.S.C. § 2808 back in February 2019, yet they have

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only provided notice of these projects as of ten days ago, with the first ground-disturbing

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activity to occur in one of Plaintiff States as early as November 22. The speed with which this

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briefing must occur is thus a problem of Defendants’ own creation, and which

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disproportionately disadvantages the Plaintiffs States. Given the short timeframe in which

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ground-disturbing will likely occur, Plaintiffs States are working as expeditiously as possible to

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accommodate a full briefing schedule in this time but respectfully request until October 11 to

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file their opening brief given the complexity of issues, the number of projects to evaluate, and

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the multiple parties in this lawsuit.

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Defendants’ Position
Defendants request that Plaintiffs file their opening briefs on October 7. Defendants are

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expediting compilation of the administrative record for lodging on September 16 and the

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submission of the record on that date will provide Plaintiffs with three full weeks to review the
State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Status Report re: § 2808 Schedule
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Status Report re: § 2808 Schedule
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record prior to filing their opening briefs on October 7. Similarly, this schedule will provide

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Defendants with just shy of three weeks to respond to Plaintiffs’ briefs. Plaintiffs have been

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aware of the locations of the § 2808 border barrier projects since Defendants’ September 3 notice

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and a filing date of October 7 will provide Plaintiffs with more than a month to prepare

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declarations and other supporting materials necessary for their opening motion. In light of the

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fact that Plaintiffs intend to file two separate briefs that may challenge up to eleven different

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border barrier projects, Defendants anticipate that those submissions are likely to be voluminous

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and contain many fact-specific declarations to which Defendants may need to

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respond. Plaintiffs’ proposed schedule would provide Defendants with only two weeks to

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respond to those materials while giving Plaintiffs approximately six weeks to prepare them. The

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schedule should not be tilted that far in Plaintiffs’ favor. Defendants’ proposal equitably

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provides Plaintiffs with three weeks to submit their opening brief after the submission of the

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administrative record and provides Defendants with approximately three weeks to

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respond. Defendants’ proposed schedule thus provides an even distribution of time to both sides.

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Accordingly, the Court should set the deadline for Plaintiffs’ opening briefs for October 7.

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***

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Status Report re: § 2808 Schedule
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Status Report re: § 2808 Schedule
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DATE: September 13, 2019

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
JAMES M. BURNHAM
Deputy Assistant Attorney General
ALEXANDER M. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch

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/s/ Andrew I. Warden
ANDREW I. WARDEN (IN #23840-49)
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]

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Attorneys for Defendants

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/s/ Dror Ladin
Dror Ladin
Noor Zafar
Jonathan Hafetz
Hina Shamsi
Omar C. Jadwat
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs in 4:19-cv-892-HSG

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Status Report re: § 2808 Schedule
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Status Report re: § 2808 Schedule
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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
LEE I. SHERMAN
JANELLE M. SMITH
JAMES F. ZAHRADKA II
/s/ Heather C. Leslie
HEATHER C. LESLIE
Deputy Attorneys General
1300 I Street
Sacramento, CA 95814
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiffs 4:19-cv-872-HSG

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State of California, et al. v. Donald J. Trump, et al., 4:19-cv-00872-HSG – Joint Status Report re: § 2808 Schedule
Sierra Club et. al. v. Donald J. Trump, et al., 4:19-cv-00892-HSG – Joint Status Report re: § 2808 Schedule
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