United States of America v. Walker River Irrigation

Filing 1420

ORDER GRANTING ECF No. 1419 Motion to Vacate Hearing : ORDERED that Oral argument re ECF No. 1395 Motion for enforcement of decree is VACATED and RESCHEDULED to Wednesday 10/12/2016 at 10:00 AM in Reno Courtroom 6 before Judge Robert C. Jones. Signed by Judge Robert C. Jones on 8/19/2016. (Copies have been distributed pursuant to the NEF - DRM)

John C. Cruden
Assistant Attorney General
Andrew “Guss” Guarino
Trial Attorney, Indian Resources Section
999 18th Street, South Terrace, Suite 370
Denver, Colorado 80202
Office: [phone] Fax: [phone]
E-mail: [e-mail]
David L. Negri
Trial Attorney, Natural Resources Section
c/o US Attorney’s Office
800 Park Blvd., Suite 600
Boise, Idaho 83712
Tel: [phone]; Fax: [phone]
E-mail: [e-mail]
Environment and Natural Resources Division
United States Department of Justice
Attorneys for the United States
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
WALKER RIVER PAIUTE TRIBE,
)
)
Plaintiff-Intervenor,
)
vs.
)
)
WALKER RIVER IRRIGATION DISTRICT, )
a corporation, et al.,
)
)
Defendants.
)
_____________________________________ )

IN EQUITY NO. C-125-RCJ
3:73-CV-00125-RCJ-WGC

UNITED STATES’ MOTION TO
VACATE AUGUST 23, 2016 ORAL
ARGUMENT

The United States of America (“United States”), through counsel designated to represent the
United States in this proceeding, moves to vacate the oral argument currently scheduled for August 23,
2016 before the assigned Judge, Hon. Robert C. Jones (“Judge Jones”). The United States requests that
oral argument on the Verified Petition For Enforcement Of The Walker River Decree (ECF No. 1395)
United States’ Motion to Vacate Oral Argument

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(“Verified Petition”) be rescheduled to a time after the United States’ Motion to Recuse (ECF No.
1414) has been resolved by another district court judge.
The paragraphs below are provided in support of this motion and constitute the memorandum
of points and authorities as required by LPR 7-2.
1.

On June 27, 2016, the United States Board of Water Commissioners and the Chief Deputy
Water Commissioner (“Board of Water Commissioners”) filed their Verified Petition against
the United States. The Verified Petition seeks to enjoin the United States from completing a
federal project to restore the riparian habitat of a small section of the Walker River.

2.

On July 22, 2016, the United States responded to the Verified Petition with its Response to
Verified Petition for Enforcement of the Walker River Decree (ECF No. 1404).

3.

On July 28, 2016, the Court issued Order (ECF No. 1409) and set oral argument on the
Verified Petition before Judge Jones for August 23, 2016.

4.

On August 9, 2016, the United States filed its Motion to Recuse (ECF No. 1414) (“Motion to
Recuse”) and requested that Judge Jones be recused because of his bias against the United
States in this case; a case involving the United States’ land and water management practices.

5.

On August 9, 2016, the Board of Water Commissioners filed their Reply to Oppositions to
Petition for Enforcement of the Walker River Decree (ECF No. 1416).

6.

The United States’ Motion to Recuse invoked 28 U.S.C. § 144 as its basis for seeking recusal
and, as required by the statue, the motion was timely filed and sufficiently supported by
affidavit.

7.

28 U.S.C. § 144 expressly instructs that once the motion to recuse and affidavit have been filed,
the judge who is the subject of the recusal request “shall proceed no further” in the case and
that “another judge shall be assigned” to hear and decide the motion to recuse. Consistent with

United States’ Motion to Vacate Oral Argument

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the express language of the statute, the United States Supreme Court recognized long ago that
the statute “permits an affidavit of personal bias or prejudice to be filed and upon filing, if it be
accompanied by certificate of counsel, directs an immediate cessation of action by the judge
whose bias or prejudice is averred, and in his stead, the designation of another judge.” Berger v.
United States, 255 U.S. 22, 33 (1921).
8.

As of this date, no action has been taken on the Motion to Recuse: no hearing has been
scheduled on the motion, no other judge has been assigned to address the motion, and no
decision has been issued on the motion. At the same time, pursuant to the July 28th Order, oral
argument on the Verified Petition remains scheduled for August 23, 2016 before Judge Jones.

9.

With the Motion to Recuse pending, Judge Jones may not take action to address the merits of
the Verified Petition. If Judge Jones held oral argument on the Verified Petition, the court
would be “proceeding” with the case contrary to 28 U.S.C. § 144 and contrary to the Supreme
Court’s admonition that such conduct should cease.

10.

Until the Motion to Recuse has been resolved, Judge Jones should not preside over oral
argument on the Verified Petition.
CONCLUSION
For the reasons articulated in the paragraphs above, the Court should vacate the oral argument

currently scheduled for August 23, 2016. No oral argument on the Verified Petition should be held
until a time after the Motion to Recuse has been properly resolved.
ORDER
IT IS HEREBY ORDERED that the Motion to Vacate Hearing (ECF #1419) is GRANTED.
IT IS FURTHER ORDERED that Oral Argument RE: Verified Petition for Enforcement of the
Walker River Decree (ECF #1395) currently set for 10:00 A.M., Tuesday, August 23, 2016 is
VACATED and RESCHEDULED to 10:00 AM, Wednesday, October 12, 2016, in RENO
COURTROOM 6, before Judge Robert C. Jones.
IT IS SO ORDERED this 19th day of August, 2016.

_____________________________
United States’ Motion to Vacate Oral Argument
ROBERT C. JONES

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