WildEarth Guardians v. United States Forest Service et al

Filing 34

Joint Case Management Plan (ORDER) Adm Plaintiffs Brief due by 9/21/2009. Adm Defendants Brief due by 10/21/2009. Adm Plaintiff Reply Brief due by 11/9/2009, by Judge John L. Kane on 5/29/09. (gmssl, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane Civil Action No. 08-cv-02167-AP WILDEARTH GUARDIANS, Plaintiff, v. UNITED STATES FOREST SERVICE, et al., Defendants. JOINT CASE MANAGEMENT PLAN

1.

APPEARANCES OF COUNSEL AND PRO SE PARTIES For Plaintiff WildEarth Guardians: Edward B. Zukoski Andrea Zaccardi Earthjustice 1400 Glenarm Place, #300 Denver CO, 80202 Telephone: [phone] [e-mail] [e-mail] For Federal Defendants: Gregory D. Page U.S. Department of Justice Environment and Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663 Telephone: [phone] [e-mail]

2.

STATEMENT OF LEGAL BASIS FOR SUBJECT MATTER JURISDICTION Plaintiff alleges that this Court has jurisdiction over this action pursuant to 28 U.S.C.

§ 1331 (federal question), and 5 U.S.C. §§ 701-706 (judicial review provisions of the Administrative Procedure Act). 3. DATES OF FILING OF RELEVANT PLEADINGS A. B. C. D. E. Date Complaint Was Filed: October 7, 2008 Date Complaint Was Served on U.S. Attorney's Office: October 9, 2008 Date Answer Was Filed: December 12, 2009 Date First Amended Complaint Was Filed: February 20, 2009 Date Answer to First Amended Complaint Was Filed: March 6, 2009

4.

STATEMENT REGARDING THE ADEQUACY OF THE RECORD The Federal Defendants shall file the administrative record in this case with the Court no

later than July 14, 2009. 5. STATEMENT REGARDING ADDITIONAL EVIDENCE Parties shall consult regarding any disputes over the record. Plaintiff shall provide to Federal Defendants a list of documents proposed to be added or deleted from the record, if any, on or before July 30, 2009. Federal Defendants shall respond to any requests by Plaintiff for documents to be added or deleted from the record on or before August 14, 2009. A revised record or supplements to the administrative record, if any, shall be filed on or before August 14, 2009. Plaintiff shall file any motion to supplement the administrative record, strike portions of the administrative record, or for leave to take discovery, if necessary, by September 4, 2009. 6. STATEMENT REGARDING WHETHER THIS CASE RAISES UNUSUAL CLAIMS OR DEFENSES Parties do not at this point anticipate unusual claims or defenses. Plaintiff WildEarth Guardians alleges that Federal Defendants actions in approving the West Elk Mine's E seam expansion project and methane venting violated the National Environmental Policy Act ("NEPA"). Federal Defendants contend that they complied with NEPA in concurring with the State of Colorado's decision to issue a permit for the challenged mine under certain circumstances, based on the administrative record in the case.

7.

OTHER MATTERS ­ POTENTIAL FOR SETTLEMENT The parties believe that there is a potential for settlement of this case. Plaintiff provided

an outline of a settlement proposal to Federal Defendants on May 14, 2009. Federal Defendants shall hold a meeting with Plaintiff to discuss Plaintiff's proposal no later than June 25, 2009. 8. PROPOSED BRIEFING SCHEDULE The following briefing schedule is premised on the assumption that no motions will be filed to supplement the administrative record, strike portions of the administrative record, or for leave to take discovery, if necessary, pursuant to Paragraph 5. In the event that a motion or motions are filed regarding the record, Plaintiff shall file a motion with the Court to amend the briefing schedule to provide for resolution of issues regarding the record prior to preparation of an opening brief. A. Plaintiff's Opening Brief Due: September 21, 2009 B. Defendants' Brief Due: October 21, 2009 C. Plaintiff's Reply Brief Due: November 9, 2009. 9. STATEMENTS REGARDING ORAL ARGUMENT Parties request oral argument in order to highlight the key elements of their respective briefs and to respond to facts or arguments raised in opposition briefs. 10. CONSENT TO EXERCISE OF JURISDICTION BY MAGISTRATE JUDGE The Parties do not at this time consent to exercise of jurisdiction by magistrate judge in this matter.

11. AMENDMENTS TO JOINT CASE MANAGEMENT PLAN The parties agree that the Joint Case Management Plan may be altered or amended only upon a showing of good cause.

DATED this 29th day of May, 2009. BY THE COURT:

S/John L. Kane U.S. DISTRICT COURT JUDGE APPROVED: s/ Edward B. Zukoski Edward B. Zukoski Andrea Zaccardi Earthjustice 1400 Glenarm Place, #300 Denver CO, 80202 Telephone: [phone] [e-mail] [e-mail] Attorneys for Plaintiff WildEarth Guardians s/ Gregory D. Page Gregory D. Page U.S. Department of Justice Environment and Natural Resources Division P.O. Box 663 Washington, D.C. 20044-0663
Telephone: [phone] [e-mail] Attorney for Federal Defendants