Dine Citizens Against Ruining Our Environment et al v. Office of Surface Mining Reclamation and Enforcement et al

Filing 20

Joint Case Management Plan for Petition for Review of Agency Action, by Judge John L. Kane on 8/24/12. (sgrim) (Main Document 20 replaced on 8/24/2012 due to typographical error) (sgrim).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-1275-AP
DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT;
SAN JUAN CITIZENS ALLIANCE;
SIERRA CLUB;
CENTER FOR BIOLOGICAL DIVERSITY; and
AMIGOS BRAVOS,
Petitioners,
vs.
UNITED STATES OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT, an agency within the U.S. Department of the Interior;
KENNETH L. SALAZAR, in his official capacity as Secretary of the Interior;
AL KLEIN, in his official capacity as Regional Director of U.S. Office of Surface
Mining Reclamation and Enforcement, Western Region;
BOB POSTLE, in his official capacity as Manager of the Program Support Division for
the Western Region of the Office of Surface Mining Reclamation and Enforcement;
RICK WILLIAMSON, in his official capacity as Manager of the Indian Programs Branch
of the Western Region of the Office of Surface Mining Reclamation and Enforcement;
and
MYCHAL YELLOWMAN, in his official capacity as Navajo Mine Team Leader in the
Office of Surface Mining Reclamation and Enforcement,
Respondents.

JOINT CASE MANAGEMENT PLAN FOR PETITION FOR REVIEW OF
AGENCY ACTION

1.

Appearances of Counsel

For Petitioners:

For Respondents:

Shiloh Hernandez

Peter McVeigh
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Western Environmental Law Center
103 Reeder’s Alley
Helena, MT 59601
t: 406-204-4861
[e-mail]

U.S. Department of Justice
P.O. Box 7415
Ben Franklin Station
Washington, D.C. 20044-7415
t: 202-514-4642
[e-mail]

For Proposed Intervenor BHP Navajo Coal Company:
Walter E. Stern
Maria O’Brien
Joan E. Drake
Deana M. Bennett
P.O. Box 2168
Bank of America Centre
500 Fourth Street NW, Suite 1000
Albuquerque, New Mexico 87103-2168
t: 505-848-1800
[e-mail]
Counsel for Petitioners and Respondents invited counsel for Proposed Intervenor
BHP Navajo Coal Company to participate in communications concerning the preparation
of this Joint Case Management Plan, which communications occurred following the filing
of BHP Navajo Coal Company’s Motion to Intervene.
2.

Statement of Legal Basis for Subject Matter Jurisdiction
The Court has jurisdiction based on the presentation of a federal question, 28

U.S.C. § 1331.
Without prejudice to any other potential jurisdictional or non-jurisdictional
defenses, Respondents and Proposed Intervenor anticipate that they will or may raise the
following jurisdictional and related defenses: standing, mootness, exhaustion of

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administrative remedies, and res judicata. Proposed Intervenor anticipates that it also will
assert the following defense: failure to join a party under Rule 19 of the Federal Rules of
Civil Procedure.
3.

Dates of Filing of Relevant Pleadings
A.
B.

Date Petition was served on U.S. Attorney’s office: 5/24/2012

C.
4.

Date Petition for Review was filed: 5/15/2012

Date Answer or other response was filed: 7/23/2012

Statement Regarding Whether This Case Raises Unusual Claims or Defenses
None.

5.

Other Matters
The Parties anticipate that the Navajo Nation will move to intervene for the

limited purpose of moving to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(7) and 19.
Proposed Intervenor BHP Navajo Coal Company moved to intervene August 17,
2012. Petitioners expect intervention to be granted. Counsel for Proposed Intervenor
BHP Navajo Coal Company indicated that Proposed Intervenor would have no objection
to this proposed joint case management plan.
Parties and Proposed Intervenor BHP Navajo Coal Company agree that there is the
possibility of productive settlement discussions.
Petitioners may seek preliminary injunctive relief.

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6.

Proposed Briefing Schedule
Given the Navajo Nation’s anticipated intervention and motion to dismiss and in

the interest of preserving the limited resources of the parties and Court alike, the briefing
schedule is based on the date of the resolution of the Navajo Nation’s anticipated motion
to dismiss. This proposed briefing schedule shall not limit any party’s right to seek or
support a request for a stay or other appropriate modification of the briefing schedule
following the Court’s ruling. The Parties also recognize that the briefing schedule may
be altered if interlocutory appellate review is sought of the Court’s ruling on the Navajo
Nation’s anticipated motion to intervene and/or the Court’s ruling on the Navajo Nation’s
anticipated motion to dismiss.
The Parties and Proposed Intervenor also agree to a bifurcated briefing process,
such that briefing on the remedies will only occur, if necessary, after the Court has
decided the merits of the case. Bifurcation may serve to conserve judicial resources and
the resources of the Parties.
A.

Deadline for filing administrative record: The later of: (1) 45 days from

resolution of the Navajo Nation’s anticipated motion to dismiss; or (2) November 16,
2012.
B.

Deadline for parties to confer on record disputes: 30 days from the

filing the administrative record.

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C.

Deadline for filing motions to complete and/or supplement the

administrative record: 30 days from the deadline for conferring on record disputes.
D.

Petitioners’ opening merits brief due: 30 days from the deadline for

conferring on record disputes, unless motions to complete and/or supplement the
administrative record are filed in which case the opening merits brief shall be due 30 days
from the Court’s decision on such motions.

E. Respondents' and Defendant-Intervenor's response merit brief due:
Respondents shall file their merits response brief within 30 days from the date of the
filing of Petitioners' opening merits brief. Respondent-Intervenors shall file their merits
response brief within 40 days from the date of the filing of Petitioners' opening merits
briefs. Respondent-Intervenors shall comply with the Court's Order granting
intervention. (ECF Doc. #18).
F.

Petitioners’ reply merits brief due: 15 days from the date of the filing of

Respondents’ response merits brief.
G.

If necessary, remedies briefing: The Court shall set a schedule for

remedies briefing after ruling on the merits.
7.

Statements Regarding Oral Argument
A.

Petitioners’ statement: Petitioners request oral argument, to answer

questions and clarify issues for the Court.

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B.

Respondents’ statement: Respondents request oral argument on the

C.

Proposed Intervenor’s statement: Proposed Intervenor BHP Navajo Coal

merits.

Company supports oral argument to the degree that it would be useful to the Court.
8.

Consent to Exercise of Jurisdiction by Magistrate Judge
All parties have not consented to the exercise of jurisdiction by a United States

Magistrate Judge.
9.

Other Matters
Counsel for Respondents notes that he will be out of the country on personal travel

from August 25, 2012, to September 8, 2012.
10.

Amendments of Joint Management Plan
The parties agree that the Joint Case Management Plan may be altered or amended

only upon a showing of good cause. The parties and Proposed Intervenor BHP Navajo
Coal Company recognize that the plan may be subject to change depending on the needs
of expected limited Intervenor Navajo Nation.
Dated this 24th day of August, 2012.

By the Court:

s/John L. Kane__________
United States District Judge
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Approved:

/s/ Shiloh Hernandez
Shiloh Hernandez
Western Environmental Law Center
103 Reeder’s Alley
Helena, MT 59601
t: 406-204-4861
[e-mail]

/s/ Peter McVeigh
Peter McVeigh
U.S. Department of Justice
Mailing address:
P.O. Box 7415
Ben Franklin Station
Washington, D.C. 20044-7415
t: 202-514-4642
[e-mail]

Attorney for Petitioners

Street Address:
950 Pennsylvania Ave., N.W.
Robert F. Kennedy Bldg., Rm. 2630
Washington, D.C. 20530
Attorney for Respondents

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