KMI Zeolite, Inc. v. United States Department of the Interior, et al.

Filing 48

ORDER Granting 47 Motion to Amend Scheduling Order. (Copies have been distributed pursuant to the NEF - ADR)

DANIEL G. BOGDEN
1 United States Attorney
District of Nevada
2 ROGER W. WENTHE
Nevada Bar No. 8920
3 TROY K. FLAKE
Assistant United States Attorneys
4 U.S. Attorney’s Office
333 Las Vegas Boulevard South, Suite5000
5 Las Vegas, Nevada 89101
Ph: 702-388-6336
6 Fax: [phone]
Email: [e-mail]
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[e-mail]
8 Attorneys for the United States Dept. of the Interior
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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KMI ZEOLITE, INC.; and ROBERT E.
FORD,

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Plaintiffs,
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v.
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UNITED STATES DEPT. OF THE
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INTERIOR; et al.,
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Defendants.
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) Case No.: 2:15-cv-2038-JCM-VCF
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JOINT MOTION TO AMEND
UNITED STATES DEPT. OF THE
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SCHEDULING ORDER
INTERIOR,
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(Fourth Request)
Counterclaimant,
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v.
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KMI ZEOLITE, INC.; ROBERT E. FORD;
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and R.A.M.M. CORP.,
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Counterclaim Defendants.
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______________________________________ )

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The parties, by their undersigned attorneys, jointly request the Court to amend the
Scheduling Order in this matter to allow further time for the parties to conduct mediation and
potentially achieve a settlement of this matter. This is the fourth motion to amend the Scheduling
Order.
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MEMORANDUM OF POINTS AND AUTHORITIES

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Introduction

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These consolidated lawsuits are (1) an action under the Administrative Procedure Act (APA)

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4 seeking review of a decision by the federal Interior Board of Land Appeals (IBLA), finding that the
5 plaintiffs in this case, KMI Zeolite, Inc. (KMI) and Robert Ford (Ford), and Counterclaim Defendant
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R.A.M.M. Corp. (RAMM), committed trespass on the public lands in connection with the operation
of a milling site on private land; and (2) an action to quiet title to the private millsite which was used
in connection with the trespasses allegedly involved in this lawsuit.
In the most recent Scheduling Order entered in this case (ECF No. 43), the Court determined

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11 that administrative review issues should be resolved first, because those issues are resolved solely by
12 reviewing the administrative record prepared by the agency. The APA portion of the case requires
13 no discovery, because APA review occurs solely on the administrative record developed by the
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agency. Building Indus. Ass’n of the Bay Area v, U.S. Dept. of Commerce, 792 F.3d 1027, 1032 (9th
Cir. 2015). The Scheduling Order set briefing for the APA issues to begin on October 12, 2016 and
conclude on December 12, 2016, with fact and expert discovery on the remaining issues, if any, to

18 follow after the order resolving the APA issues. (ECF No. 43.)
The parties1 have determined in good faith that there is a substantial chance that these

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20 consolidated matters can be resolved through mediation. The parties conducted an initial day-long
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session of mediation with Mediator Bruce Edwards of JAMS on June 8, 2016, and they have held
follow-up teleconferences with the mediator on June 22, August 3, and October 5. The parties

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anticipate further sessions of mediation to continue to discuss methods of resolving these matters. As
a result, the parties request that all deadlines in this matter be extended by 90 days, to permit a full

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Galtar, Inc., which is a defendant in the consolidated ABC Recycling case, does not join in this
28 motion because it has filed a motion to dismiss that action which is pending.
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opportunity to conduct settlement discussions with the mediator. The parties therefore jointly
propose the following schedule:
PROPOSED SCHEDULING ORDER

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The Parties propose the following schedule and related deadlines:

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1.

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Briefing on the APA issues in the KMI Zeolite case shall be as follows:

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Plaintiff’s and Defendants’ motions for summary judgment
and supporting briefs due:

January 12, 2017

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Briefs in response to motions for summary judgment due:

February 13, 2017

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Reply briefs in support of summary judgment due:

March 15, 2017

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2.

Initial Disclosures due:

30 days after order disposing of
APA issues in KMI Zeolite

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3.

Amendment of Pleadings due:

30 days after Initial Disclosures

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4.

Fact Discovery closes:

180 days after Initial Disclosures

5.

Expert Discovery:

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a.

Last day to designate Plaintiffs’ experts:

b.

Last day to designate Defendant’s experts: 60 days after fact discovery close

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c.

Last day to designate rebuttal experts:

90 days after fact discovery close

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c.

Last day to complete expert discovery:

120 days after fact discovery
close

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6.

Dispositive Motions due:

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30 days after fact discovery close

30 days after expert discovery
close

Pre-Trial Order:

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a.

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Last date to file if no dispositive motions are filed: 30 days after expert
discovery close

b.

Last date to file if dispositive motions are filed: 30 days after order resolving
last dispositive motion
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For the reasons set forth above, Plaintiff and Defendants respectfully and jointly request the

3 Court to enter its SCHEDULING ORDER in conformity with the dates proposed herein.
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Dated: October 24, 2016

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For KMI Zeolite, Inc.:

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/s/ Karen Budd-Falen
Karen Budd-Falen
300 E. 18th St.
P.O. Box 346
Cheyenne, WY 82003

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For ABC Recycling Industries, LLC and Robert E. Ford:

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/s/ Dan M. Winder
Dan M. Winder, Esq.
Law Office of Dan M. Winder, P.C.
3507 W. Charleston Blvd.
Las Vegas, NV 89102

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For the Federal Defendants:

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DANIEL G. BOGDEN
United States Attorney

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/s/ Roger W. Wenthe
ROGER W. WENTHE
Assistant United States Attorney
For Counterclaim Defendant R.A.M.M. Corp.

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/s/ Daniela LaBounty
Daniela LaBounty
Olson, Cannon, Gormley, Angulo & Stoberski
9950 West Cheyenne Avenue
Las Vegas , NV 89129

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IT IS SO ORDERED.
10-25-2016
Date:

UNITED STATES MAGISTRATE JUDGE

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Case 2:15-cv-02038-JCM-VCF Document 47 Filed 10/24/16 Page 6 of 6

PROOF OF SERVICE

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The undersigned certifies that a copy of the foregoing document was served on the persons
shown, by the method shown, on the date shown.
CM/ECF
All counsel of record
Dated: October 24, 2016
/s/ Roger W. Wenthe
ROGER W. WENTHE
Assistant United States Attorney

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