Center for Biological Diversity et al v. U.S. Bureau of Land Management et al

Filing 27

ORDER granting ECF No. 26 Motion to Extend Time for Plaintiffs to Challenge the Content and Scope of the Administrative Record. Deadline to file motion challenging administrative record be extended to 05/24/2018. Signed by Magistrate Judge William G. Cobb on 4/30/2018. (Copies have been distributed pursuant to the NEF - KW)

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JULIE CAVANAUGH-BILL (NV Bar No. 11533)
Cavanaugh-Bill Law Offices, LLC
Henderson Bank Building
401 Railroad Street, Suite 307
Elko, Nevada 89801
Tel: [phone]
Email: [e-mail]
CLARE LAKEWOOD (CA Bar No. 298479), pro hac vice
MICHAEL SAUL (CO Bar No. 30143), pro hac vice
Center for Biological Diversity
1212 Broadway, # 800
Oakland, CA 94612
Tel: [phone]
Email: [e-mail]
Attorneys for Plaintiffs
Center for Biological Diversity and Sierra Club

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

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Case No. 3:17-cv-00553-LRH-WGC

CENTER FOR BIOLOGICAL
DIVERSITY, and SIERRA CLUB
Plaintiffs,
v.

PLAINTIFFS’ NOTICE OF MOTION AND
MOTION TO EXTEND THE TIME FOR
PLAINTIFFS TO CHALLENGE THE
CONTENT AND SCOPE OF THE
ADMINISTRATIVE RECORD;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF

U.S. BUREAU OF LAND
MANAGEMENT; RYAN ZINKE, in his
capacity as Secretary of the Department of
the Interior; and BRIAN STEED, in his
capacity as Acting Director of the Bureau of
Land Management,
Defendants.

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3:17-cv-00553-LRH-WGC
PLAINTIFFS’ MOTION TO EXTEND TIME TO
CHALLENGE THE RECORD

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NOTICE OF MOTION

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Plaintiffs Center for Biological Diversity, et al. will and hereby do move for an order extending the

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deadline for Plaintiffs to file a motion challenging the content and scope of the administrative record.

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This Motion is based on this Notice of Motion, the attached Memorandum of Points and Authorities,

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the declaration of Clare Lakewood, all pleadings and papers filed in this action, and such oral and

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documentary evidence as may be presented at the hearing on this matter. For the foregoing reasons,

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Plaintiffs respectfully request that the Court order that their deadline to file a motion challenging the

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content and scope of the administrative record be extended to May 24, 2018.

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DATED: April 27, 2018
______/s/ Clare Lakewood___________

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CLARE LAKEWOOD (CA Bar No. 298479),
pro hac vice
MICHAEL SAUL (CO Bar No. 30143),
pro hac vice
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Plaintiffs

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3:17-cv-00553-LRH-WGC
PLAINTIFFS’ MOTION TO EXTEND TIME TO CHALLENGE THE RECORD

MEMORANDUM OF POINTS AND AUTHORITIES

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INTRODUCTION

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Plaintiffs Center for Biological Diversity and Sierra Club (“Plaintiffs”) respectfully request

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that this Court extend by two weeks the deadline for challenging the content and scope of the

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administrative record, set out in paragraph 2 of the Revised Joint Case Management Statement filed

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March 30, 2018 (ECF No. 23, p. 3). Plaintiffs’ current deadline for challenging the record is April

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27, 2018 and they request an extension until May 24, 2018.

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Under the Administrative Procedure Act, “the court shall review the whole record or those
parts of it cited by a party.” 5 U.S.C. § 706. “[T]he whole record is not necessarily those documents

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that the agency has compiled and submitted as ‘the’ administrative record, [but, rather,] the court

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must look to all the evidence that was before the decisionmaking body.” Public Power Council v.

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Johnson, 674 F.2d 791, 794 (9th Cir. 1982) See also Envtl. Defense Fund v. Blum, 458 F. Supp. 650,

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661 (D.D.C. 1978) (improper “to exclude from consideration pertinent material submitted as an

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integral part of the rulemaking process or otherwise located in EPA’s own files” even if agency did

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not rely on it).

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Defendants lodged an administrative record with the Court on April 13, 2018. A large

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number of documents forming part of the record in this case were not included in that administrative

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record. The omitted documents were various scientific studies, reports, white papers, newspaper

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articles and other documents cited in comment letters and protests Plaintiffs provided to Defendants.

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Ex. A, Declr. of C. Lakewood (Apr. 27, 2018). Defendants have agreed that any documents provided

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by Plaintiffs to Defendants before the decisions challenged in this case properly form part of the

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record, and have agreed to lodge a supplement with the Court.

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Unfortunately, despite extensive conferral by telephone and by e-mail, parties have been

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unable to agree on a further revision to the Revised Joint Case Management Statement to preserve

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Plaintiffs’ right to challenge the content and scope of the administrative record after the supplement

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is lodged. The current Revised Joint Case Management Statement provides Plaintiffs with two weeks

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from the lodgment of the administrative record to review and prepare any challenge to the

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administrative record.
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3:17-cv-00553-LRH-WGC
PLAINTIFFS’ MOTION TO EXTEND TIME TO CHALLENGE THE RECORD

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On the understanding that Defendants intend to lodge the supplement by May 9, Plaintiffs

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seek an extension of the deadline for challenging the content and scope of the administrative record

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or notice that Plaintiffs do not challenge the content and scope of the administrative record, of two

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weeks from May 9, 2018, being May 23, 2018.

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The two-week extension mirrors the two-week period parties agreed for Plaintiff to challenge

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the record under the current Revised Case Management Statement. It will ensure that Plaintiffs have

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sufficient time to review the record in its entirety, and preserves their right to complete or

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supplement the record. This in turn ensures that this Court has before it all materials that were before

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the decisionmaker when it made its decisions, and that Plaintiff can fully argue its case by reference

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to those materials; while aiding the parties to resolve outstanding issues with the administrative

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record without further orders from the court. The two-week extension requested will not delay

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resolution of the matter, as the briefing schedules set out in the Revised Case Management Statement

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otherwise remains unaltered.

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Counsel for Defendants has indicated that Defendants does not oppose Plaintiffs’ motion to
extend the time for Plaintiffs to challenge the record only if:

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i)

Plaintiffs extension of time is only until May 16, 2018; and

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ii)

The subject matter of any challenge is limited only to a failure by BLM to include in

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the supplement the documents provided by Plaintiffs to BLM and identified by

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Plaintiffs in the spreadsheet it provided on May 26, 2018.

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DATED: April 27, 2018

Respectfully submitted,

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IT IS SO ORDERED

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Dated: April 30, 2018

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__________________________________
UNITED STATES MAGISTRATE JUDGE
____________________________________
4 UNITED STATES MAGISTRATE JUDGE

____/s/ Clare Lakewood___________
CLARE LAKEWOOD (CA Bar No. 298479),
pro hac vice

3:17-cv-00553-LRH-WGC
PLAINTIFFS’ MOTION TO EXTEND TIME TO CHALLENGE THE RECORD

MICHAEL SAUL (CO Bar No. 30143),
pro hac vice
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Plaintiffs

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3:17-cv-00553-LRH-WGC
PLAINTIFFS’ MOTION TO EXTEND TIME TO CHALLENGE THE RECORD

CERTIFICATE OF SERVICE

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I certify that on April 27, 2018, I filed the foregoing Motion for an Extension of Time to

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Challenge the Administrative Record and Memorandum of Points and Authorities Thereof on behalf
of Plaintiffs Center for Biological Diversity and Sierra Club via the CM/ECF system which will
provide electronic service to all counsel of record.

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DATED: April 27, 2018
_/s/ Clare Lakewood____________

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CLARE LAKEWOOD
Attorney for Plaintiffs

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3:17-cv-00553-LRH-WGC
PLAINTIFFS’ MOTION TO EXTEND TIME TO CHALLENGE THE RECORD