Sierra Club et al v. California American Water Company et al

Filing 43

STIPULATION AND ORDER RE: SUPPLEMENTAL SUBMITTALS ON MOTION TO DISMISS AND CASE MANAGEMENT re 42 . The initial case management conference set on 12/4/09 is vacated. Signed by Judge Jeremy Fogel on 11/24/09. (dlm, COURT STAFF) (Filed on 11/25/2009)

1 SANDI L. NICHOLS (BAR NO. 100403) JAN S. DRISCOLL (BAR NO. 065967) 2 PATRICK E. BREEN (BAR NO. 081579) ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP 3 Three Embarcadero Center, 12th Floor 4 San Francisco, CA 94111-4074 Phone: [phone] Fax: [phone] E-Mail: [e-mail] [e-mail] 6 [e-mail] 7 Attorneys for Defendant 8 CALIFORNIA-AMERICAN WATER COMPANY, dba CALIFORNIA AMERICAN WATER, a California 9 corporation 10 11 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE DIVISION) Case No. CV 09 2870 JF RS STIPULATION OF ALL PARTIES RE: SUPPLEMENTAL SUBMITTALS ON MOTION TO DISMISS AND CASE MANAGEMENT; ------------------ ORDER [PROPOSED] THEREON Date: Time: Ctrm: Judge: December 18, 2009 9:00 a.m. 3 The Honorable Jeremy Fogel

13 SIERRA CLUB, a not-for-profit California Corporation, and CARMEL RIVER 14 STEELHEAD ASSOCIATION, 15 16 vs. Plaintiffs,

17 CALIFORNIA-AMERICAN WATER COMPANY, dba CALIFORNIA AMERICAN 18 WATER, a California Corporation, 19 Defendant,

20 GARY LOCKE, SECRETARY OF THE UNITED STATES, DEPARTMENT OF 21 COMMERCE, in his official capacity, Defendant (Joinder under FRCP 19(a) as a 22 Necessary Party) and DR. JANE LUBCHENKO, ADMINISTRATOR, 23 NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, in her 24 official capacity, Defendant (Joinder under FRCP 19(a) as a Necessary Party) and 25 RODNEY McINNIS, REGIONAL ADMINISTRATOR, SOUTHWEST REGION, 26 NATIONAL MARINE FISHERIES SERVICE, in his official capacity, Defendant (Joinder 27 under FRCP 19(a) as a Necessary Party). 28
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

772112.01/SF

STIPULATION OF ALL PARTIES RE: SUPPLEMENTAL SUBMITTALS ON MOTION TO DISMISS AND CASE MANAGEMENT; [PROPOSED] ORDER

1

Plaintiffs Sierra Club and Carmel River Steelhead Association ("Plaintiffs"), defendants

2 California-American Water Company dba California American Water ("CAW") and defendants 3 Gary Locke, Secretary of the United States Department of Commerce, Dr. Jane Lubchenko, 4 Administrator of the National Oceanic and Atmospheric Administration, and Rodney McInnis, 5 Regional Administrator, Southwest Region, National Marine Fisheries (collectively, the "Federal 6 Agency Defendants") hereby stipulate by and through their respective counsel of record as 7 follows: 8 9 RECITALS WHEREAS, the hearing on CAW's pending Motion to Dismiss this action was continued

10 by the Court, following oral argument on September 18, 2009, to December 18, 2009, to allow for 11 the conclusion of the proceedings before the State Water Resources Control Board ("SWRCB") on 12 the proposed Cease and Desist Order against CAW in connection with WRO 95-10 and a true and 13 correct copy of the transcript of that oral argument and Order Continuing Hearing on Defendant's 14 Motion to Dismiss are collectively attached hereto as Exhibit A for the Court's convenience; 15 WHEREAS, the SWRCB adopted Cease and Desist Order WR 2009-0060 (the "CDO")

16 against CAW on October 20, 2009, which requires CAW to cease and desist its diversion of water 17 from the Carmel River in excess of its permitted rights in accordance with a prescribed schedule 18 and conditions; 19 WHEREAS, in November 2009, Petitions for Writ of Mandate were subsequently filed by

20 CAW and by the Monterey Peninsula Water Management District ("MPWMD"), respectively, to 21 challenge the CDO; 22 WHEREAS, on October 30, 2009, the MPWMD moved the Monterey County Superior

23 Court, ex parte, for a stay of the CDO and, on or about November 3, 2009, that court issued a 24 Minute Order granting a stay of the CDO pending the outcome in MPWMD's mandamus 25 proceeding (the "Stay"); 26 WHEREAS, on or about November 13, 2009, the SWRCB filed an ex parte application for

27 an order dissolving the Stay, and opposition to that application has been filed by CAW and the 28 MPWMD, respectively;
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

772112.01/SF

-2STIPULATION OF ALL PARTIES RE: SUPPLEMENTAL SUBMITTALS ON MOTION TO DISMISS AND CASE MANAGEMENT; [PROPOSED] ORDER

1

WHEREAS, the Monterey County Superior Court has not yet ruled on the SWRCB's

2 application for an order to dissolve the Stay; 3 WHEREAS, in this action, the Court previously set dates for an Initial Case Management

4 Conference and ADR Deadlines, but it is the understanding of these parties that such dates were 5 implicitly vacated by the continuance of the hearing on CAW's Motion to Dismiss, and the Court's 6 prior order permitting the Federal Agency Defendants not to appear in this action pending the 7 outcome of said Motion to Dismiss; 8 WHEREAS, the parties now wish to stipulate to the filing of Supplemental Requests for

9 Judicial Notice in connection with the pending Motion to Dismiss, and further wish to confirm 10 that the dates previously set for compliance with Federal Rule of Civil Procedure 26(f), Civil L.R. 11 16.8(b) and ADR L.R. 3-5(b) and (c), Federal Rule of Civil Procedure 26(a)(1) and Civil L.R. 1612 9, as well as the Initial Case Management Conference set for December 4, 2009, at 10:30 a.m., 13 have all been vacated pending the outcome of the Motion to Dismiss; 14 15 16 1. NOW, THEREFORE, the parties do hereby Stipulate as follows: STIPULATION That, on or before December 4, 2009, each party may file a Supplemental Request

17 for Judicial Notice in connection with CAW's pending Motion to Dismiss, to request the Court to 18 take judicial notice of documents subject to such notice and prepared on and after September 16, 19 2009; 20 2. That the parties jointly request the Court to confirm that the dates previously set by

21 the Order Setting Initial Case Management Conference and ADR Deadlines have been 22 VACATED pending the outcome of CAW's Motion to Dismiss and that no further filings are 23 required of the parties pending such outcome. 24 Dated: November 20, 2009 25 26 27 28
LAW OFFICES

CALIFORNIA ENVIRONMENTAL LAW PROJECT By: /s/ Laurens H. Silver LAURENS H. SILVER Attorneys for Plaintiffs SIERRA CLUB and CARMEL RIVER STEELHEAD ASSOCIATION

Allen Matkins Leck Gamble Mallory & Natsis LLP

772112.01/SF

-3STIPULATION OF ALL PARTIES RE: SUPPLEMENTAL SUBMITTALS ON MOTION TO DISMISS AND CASE MANAGEMENT; [PROPOSED] ORDER

1 Dated: November 20, 2009 2 3 4 5 6 7 8 9 Dated: November 20, 2009 10 11 12 13 14 15 16 17 18 19

ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP SANDI L. NICHOLS JAN S. DRISCOLL PATRICK E. BREEN By: /s/ Sandi L. Nichols SANDI L. NICHOLS Attorneys for Defendant CALIFORNIA-AMERICAN WATER COMPANY, dba CALIFORNIA AMERICAN WATER, a California corporation UNITED STATES DEPARTMENT OF JUSTICE By: /s/ Jay Govindan JAY GOVINDAN Attorneys for Defendants GARY LOCKE, SECRETARY OF THE UNITED STATES, DEPARTMENT OF COMMERCE, in his official capacity; DR. JANE LUBCHENKO, ADMINISTRATOR, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, in her official capacity; and RODNEY MCINNIS, REGIONAL ADMINISTRATOR, SOUTHWEST REGION, NATIONAL MARINE FISHERIES SERVICE, in his official capacity

Attestation Regarding Signature: This document is being filed electronically under my user

20 ID and Password. Pursuant to General Order 45, section XB, I hereby attest that concurrence in 21 the filing of this document has been obtained from each of the other signatories to this document. 22 I declare under penalty of perjury under the laws of the United States that the foregoing is

23 true and correct and was executed on November 20, 2009, in San Francisco, California. 24 25 26 27 28
LAW OFFICES

/s/ Sandi L. Nichols SANDI L. NICHOLS

Allen Matkins Leck Gamble Mallory & Natsis LLP

772112.01/SF

-4STIPULATION OF ALL PARTIES RE: SUPPLEMENTAL SUBMITTALS ON MOTION TO DISMISS AND CASE MANAGEMENT; [PROPOSED] ORDER

1 2 3 4 Dated: 11/24/09 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES

[PROPOSED] ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED.

The Honorable Jeremy Fogel United States District Court Judge

Allen Matkins Leck Gamble Mallory & Natsis LLP

772112.01/SF

-5STIPULATION OF ALL PARTIES RE: SUPPLEMENTAL SUBMITTALS ON MOTION TO DISMISS AND CASE MANAGEMENT; [PROPOSED] ORDER