Opinion
NO. CS-01-192-RHW
March 13, 2002
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT
Before the Court are two motions for summary judgment: Plaintiffs' Motion for Summary Judgment (Ct. Rec. 37) and Defendants' Cross-Motion for Summary Judgment (Ct. Rec. 46). The Court heard oral argument on these motions on March 5, 2002. Galen Schuler and Thomas McDonald argued on behalf of Plaintiffs; David Gehlert and Robert Gulley argued on behalf of Defendants; John Aram argued on behalf of Defendant Intervenors. For the reasons discussed below, the Court grants summary judgment in favor of Defendants.
Overview
In the Methow River Valley in north central Washington, ranches and small communities occupy the valley floor. The surrounding land of forests and mountains is primarily owned by the federal government and managed by the United States Forest Service. Plaintiffs are landowners who access water through ditches that traverse Okanogan National Forest land. In order to construct, use, and maintain a ditch on federal land, one must obtain a special use permit from the Forest Service. The Early Winters Ditch originally was constructed, used, and maintained pursuant to a permit filed May 11, 1910. After numerous permit renewals throughout the century, the Early Winters Ditch is now used and maintained pursuant to a permit filed April 15, 1998. In 1997, the National Marine Fisheries Service had listed the steelhead trout as an endangered species; in 1998 the Fish and Wildlife Service had listed the bull trout as a threatened species. As a result,; in issuing the 1998 permit, the Forest Service noted that "it may be necessary to amend this permit to include conditions which may be required by the National Marine Fisheries Service or the U.S. Fish and Wildlife Service."
The Forest Service then worked with the National Marine Fisheries Service, and the Fish and Wildlife Service, and Plaintiffs to insure that, in issuing the new permit the Forest Service complied with the Endangered Species Act. The subsequent amendments added in 1999 included (among other conditions) restrictions on minimum in-stream flow rate. Plaintiffs' first and second causes of action in this lawsuit address whether the Forest Service has the authority to impose minimum in-stream flow restrictions in a special use permit. Plaintiffs' third cause of action addresses whether Plaintiffs, in reaching the conclusion that in-stream flow conditions were necessary, applied the Endangered Species Act in an arbitrary and capricious manner. Plaintiffs' fourth cause of action addresses whether Plaintiffs violated the Administrative Procedures Act by following a rule that was not subject to notice and comment. Review is based on the administrative record. Camp v. Pitts, 411 U.S. 138, 142 (1973.).
Does the Forest Service have the power?
At the outset, it is important to note that this is not a controversy about water rights, but over rights-of way through lands of the United States, which is a different matter. The Government has not claimed a superior water rights nor would this Court have jurisdiction if it did (determination of water rights is a question for state courts). By conditioning a special use permit, the Forest Service does not (and cannot) reserve the water from other users who do not use Forest Service land to access water. Moreover even though Plaintiffs must comply with the special use permit, they retain their water rights and may be able to divert the water through alternate means or from an alternate diversion point. Claiming a water right is a much more powerful tool in that the in-stream flows at issue could be reserved against all users.
Plaintiffs have that because Defendants do not have the power to claim a water right (see discussion below), the Forest Service is attempting to do indirectly that which it is forbidden from doing directly. However, this argument misstates the question before the Court. Defendants have opted for the much less powerful tool of conditioning a special use permit, and the only question before the Court is whether Congress intended the Forest Service to have this much less powerful tool.
Plaintiffs have argued that although they maintain their water rights, the permit restrictions rise to the level of a taking. However, Plaintiffs have not raised a taking claim before this Court. The question before the Court is not a controversy about whether Government action constitutes a "taking" for Fifth Amendment purposes.
The question presented is one of Congressional intent regarding the Forest Service's freedom to contract: Did Congress intend that the Forest Service have the power to condition a special use permit to protect fish by requiring minimum in-stream flows? If the Court finds that the Forest Service does not have this power, the proper remedy is to remand the special use permit to the Forest Service to establish new conditions (noting that the Forest Service would not be allowed to include minimum in-stream flows as a condition). However, the Court finds that Congress intended a broad freedom of contract in issuing special use permits, and that the special use permits at issue do not exceed the Forest Service's power.
A federal agency has all those powers that are (1) granted by statute, and (2) not relinquished through contract. The Court considers each in turn.
Do the Organic Act and the Multiple Use and Sustained Yield Act authorize the Forest Service to condition a special use permit to protect fish by requiring minimum in-stream flows? Before 1973, the Early Winter's special use permits were issued pursuant to43 U.S.C. § 959 (as enacted in 1901), which provides broad permitting discretion:
The Secretary of the Interior is authorized and empowered under general regulations to be fixed by him, to permit use rights-of-way through the public lands, forest and other reservations of the United States [for] canals, ditches, pipes and pipelines, flumes, tunnels, or other water conduits. . . . [Any] permission given by the Secretary of the Interior under the provisions of this section may be revoked by him or his successor in his discretion, and shall not be held to confer any right, or easement, or interest m, to, or over any public lands, reservation, or park.
Id.
Defendants contend that the Organic Administration Act of 1897 ( 16 U.S.C. § 473-482) gives the Forest Service broad discretion to incorporate a great variety of permit restriction, including a requirement of minimum in-stream flows. Plaintiffs contend that, while the Forest Service does have broad Organic Act discretion to incorporate a great variety of permit restrictions, this discretion does not include the right to restrict in-stream flow.
In United States v. New Mexico, 438 U.S. 696 (1978), the Supreme Court held that the United States could claim a federal reserve water right for only two purposes: "to conserve the water flows, and to furnish a continuous supply of timber for the people." Id. at 707 (internal quotes and citations omitted). These two primary purposes are found in the text of the Organic Act detailing the purposes for which national forests may be established and administered:
No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose securing favorable conditions of water flows, and to furnish continuous supply of timber for the use and necessities of citizens of the United States.16 U.S.C. § 475 (as enacted 1897).
Subsequent legislation expanded the purposes of the national forests. In 1960, Congress passed the Multiple Use Sustained Yield Act, 16 U.S.C. § 528, et seq., which formally recognized some secondary purposes for the national forests:
It is the policy of Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of . . . this title are declared to be supplemental to, but not in derivation of the purposes for Which the national forests were established as set forth in the [Organic Act].
In United States v. New Mexico, the question before the Court was whether Congress, in enacting these new purposes, intended that the new purposes could authorize a reservation of additional water. Again, the Court held that the Government could not reserve a water right for any purpose other than the two primary purposes ("to conserve the water flows, and to furnish a continuous supply of timber for the people"). However, the holding is limited to instances in which the Government is reserving a water right. With respect to the general regulatory authority the Forest Service retains the broad Organic Act powers to achieve both the primary purposes and the secondary purposes as detailed in the Multiple Use and Sustained Yield Act.
The Forest Service contends that under the Organic Act it has always had the power to condition special use permits to include the maintenance of in-stream flows. The Court rejects this position. While the Organic Act gave broad powers to the government to regulate private uses of the forest, the exercise of that power would have to be consistent with the purposes for which the forest was administered. Restriction of a permit to require in-stream flows would not have been consistent with the purposes of the forest until at least the passage of the Multiple Use and Sustained Yield Act in 1960. While not necessary to a decision, the Court believes that such a restriction prior to the Multiple Use and Sustained Yield Act would have been arbitrary and capricious.
However, the Multiple Use and Sustained Yield Act changed the purposes for which forests were administered and such purposes had to be considered when the agency was taking action on a permit to use the forest land. These purposes include management for fish and wildlife.
Were Defendants attempting to reserve a water right for these purposes, the holding in United States v. New Mexico, supra, would require that the Court grant summary judgment in favor of Plaintiffs. However, as discussed above, there are significant differences between "requiring minimum in-stream flows as a condition of a special use permit" and "reserving a water right."
The Court holds that under the Organic Act and Multiple Use and Sustained Yield Act, Congress intended the Forest Service to have broad powers in regulating private uses of forest land. This power includes conditioning special use permits to require minimum in-stream flows to protect fish where consistent with the forest purposes, as defined by Congress. This power was further defined and limited by Congress in the Endangered Species Act, as discussed, infra.
Does Subsequent Legislation Diminish Authority to Condition a Special Use Permit by Requiring Mimmum In-stream Flows?
After 1976, the Early Winters special use permits were issued pursuant to the Federal Land Policy and Management Act, 43 U.S.C. § 1761-771. Although the Federal Land Policy and Management Act is substantially more detailed than its predecessor, the details do not address whether the Forest Service may condition a special use permit by requiring minimum in-stream flows. Plaintiffs contend that the following savings provisions limit the Forest Service power to condition special use permits:
(a) Nothing in this Act . . . shall be construed as terminating any valid lease, permit, patent right-of-way, or other land use right or authorization existing on the date of approval of this Act. . . .
(g) Nothing in this Act shall be construed as limiting or restricting the power and authority of the United States or —
(1) as affecting in any way any law governing appropriation or use of, or Federal right to, water on public lands;
(2) as expanding or diminishing Federal or State jurisdiction, responsibility, interests, or rights in water resources development or control; . . .
(4) as superseding modifying, or repealing, except as specifically set forth in this Act, existing laws applicable to the various Federal agencies which are authorized to develop or participate in the development of water resources or to exercise licensing or regulatory functions in relation thereto; . . .
(h) All actions by the Secretary concerned under this Act shall be subject to valid existing rights.43 U.S.C. § 1701, Historical Note.
The Court reads this statutory language as showing an intent to preserve the status quo with respect to federal and state jurisdiction over the use of water on federal land. Specifically, (1) existing special use permits will remain valid until their expiration dates; (2) existing water laws are unaffected; (3) existing jurisdiction and federal rights are unaffected; (4) existing agency powers are unaffected; and (5) existing rights are unaffected. Therefore, if the Forest Service had the power to impose minimum in-stream flow restrictions in a special use permit, the Forest Service retains this power. If, however, the Forest Service was attempting to claim a water right or exercise a power not authorized under its authority, the Federal Land Policy and Management Act would prohibit the action. As discussed above the Court finds that the Forest Service is not attempting to claim a water right, and the Forest Service is authorized to impose minimum in-stream flow restrictions in a special use permit. The Federal Land Policy and Management Act does not diminish this power.
Plaintiffs also maintain that the Alaska National Interest Lands Conservation Act ( 16 U.S.C. § 3102, et. seq.) diminishes the authority of the Forest Service. The statute reads:
Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to to secure the owner the reasonable use and enjoyment thereof.16 U.S.C. § 3210(a).
Although water is included in the definition of lands under the Act, this provision does not create a right to transmit and distribute water across federal land. Specifically, "access" is defined as "the ability of landowners to have ingress and egress to their lands," and "does not include right-of-way for power lines or other utilities." 36 C.F.R. § 251.111. Moreover, even if 16 U.S.C. § 3210(a) were applicable, a plaintiff seeking judicial confirmation of a right of access under that provision, would bear the burden of applying to the administrative agency for such a right and the agency's action would be constrained by the Endangered Species; Act, as discussed infra.
Finally, Plaintiffs maintain that the 1986 amendment to the Federal Land Policy and Management Act (the "Ditch Bill") diminishes the Organic Act authority of the Forest Service. Plaintiffs cite the following passage:
Nothing in this bill is intended to establish a basis for federal decisions affecting the timing of water delivery or the amount of water to be released through a water conveyance system. . . . the Committee intended to avoid any. implication that a federal land manager was to be given, through this legislation, authority to regulate such matters as in-stream flows or the appropriation, use or diversion of water. . . .
House Report on 1986 "Ditch Bill" Amendment to FLPMA, 43 U.S.C. § 1761(c)(3)(B) (1986 U.S.C.C.A.N. 5086, 5089) (emphasis added). The cited language makes clear that the legislation does not intend to expand the authority of the Forest Service, but makes no indication whatsoever of an intent to limit previously authorized powers of the Forest Service.
Did the Forest Service relinquish its power through contract?
Even if the Forest Service had the power to condition a special use permit by requiring minimum in-stream flows, the Court must also determine whether the Forest Service relinquished this power through contract.
Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995), tells the story of a federal agency that relinquished a power through contract. In that case, Woolley (a private logging company) wanted to construct a logging road on land controlled by the Bureau of Land Management. In deciding the terms of a contract with a private party, the Bureau of Land Management (like the Forest Service) presumably could require any terms consistent with the Bureau of Land Management's statutory mission. In 1962, Woolley and the Bureau of Land Management decided on the following agreement:
Construction may be commenced after the expiration of a thirty (30) day period following the filing of such map unless in the intervening period the landowner shall object to such construction. The landowner may object to the proposed construction only if (1) it does not constitute the most reasonably direct route for the removal of forest products from the lands of the road builder, taking into account the topography of the area, the cost of road construction in the safety of use of such road, (2) the proposed road will substantially interfere with existing or planned facilities or improvements on the lands of the landowner, or (3) would result in excessive erosion to lands of the landowner.
Id. at 1506.
In 1973, the statutory purpose of the Bureau of Land Management changed. The question in Sierra Club was, given the new statutory purpose, could the landowner object to the proposed construction because (4) a listed species would be affected? The Ninth Circuit answered that the Bureau of Land Management was bound by the terms of the contract, and that "these three factors are the only conditions the BLM properly could consider." Id. at 1511. In other words, although the Bureau of Land Management initially had the power to condition the construction on any terms consistent with its statutory mission, once it entered into the contract, it limited its power to object to the three specifically listed conditions.
Babbitt is easily distinguishable from the case before the Court. First, Babbitt deals with alone-time contract, with no indication of expiration or need for renewal. Thus, the agency in Babbitt had no further action to take (indeed, one party in the case maintained that Section 7 did not apply precisely because Bureau of Land Management's conduct was inaction). Early Winters deals with a contract that expires and is subject to renewal. Renewal and modification of the contract (as expressly anticipated by the terms of the previous contract) qualifies as an "action" that triggers Section 7 review. With the expiration of the prior permit, the Forest Service begins anew to negotiate the renewal permit, and is not bound by any language of the prior permit.
Second, the language of the contract in Babbitt narrowly confined the circumstances in which the landowner can object to the construction. In Early Winters, the language of the contract is much more broad. Specifically, every permit issued by the Forest Service in this case gives the Forest Service broad discretion to revoke a permit.
The 1998 special use permit provides that the Forest Service can revoke the permit (object to the right-of-way) for:
(1) Noncompliance with Federal, State, or local laws and regulations.
(2) Noncompliance with the terms and conditions of this permit.
(3) Reasons in the public interest.
(4) Abandonment or other failure of the holder to otherwise exercise the privileges granted.
EW 265.
The Court finds that the Forest Service has the power to condition a special use permit by requiring minimum in-stream flows, and that the Forest Service did not relinquish this power through contract.
Violation of the Endangered Species Act (Third Cause of Action)
Having found that the Forest Service has the power to impose minimum in-stream flow restrictions in a special use permit, the Court now turns to the question of whether Defendants properly exercised this power. Specifically, the Court addresses the question of whether the Endangered Species Act requires the Forest Service to impose the minimum in-stream flow restrictions at issue in this case. Under the Administrative Procedures Act, administrative agency action should be set aside if it is arbitrary and capricious, or an abuse of discretion, or not in accordance with the law. Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir. 1995).
Standing
The parties agree that Plaintiff Early Winters has standing as to the first, second, and fourth causes of action, and that the Court need not determine the other Plaintiffs' standing to bring those claims so long as Early Winters remains in the case. The parties agree that Plaintiff Early Winters has standing on the portion of the third cause of action pertaining to the Early Winters special use permit and biological opinion. However, the Court must determine whether any Plaintiff has standing on the portion of the third cause of action pertaining to the Skyline special use permit and biological opinion. For the reasons discussed below, the Court finds that no Plaintiff in this case has standing to request review of whether Defendants violated the Endangered Species Act in the process of issuing the Skyline special use permit and biological opinion.
David Jones and Frances Kaul own approximately 10 acres of land and appurtenant water rights that are served by the Skyline irrigation ditch. They also own shares in the Skyline Ditch Company, the holder of one of the special use permits at issue in this case. Although the Skyline Ditch Company decided not to participate in this lawsuit, Plaintiffs argue that Jones and Kaul have standing because Defendants' action is a regulation of water rights owned by Jones and Kaul. As noted above, this is not a controversy about water rights, but over rights-of-way through lands of the United States, which is a different matter. Plaintiffs have requested injunctive relief, that the Court prohibit the Government from enforcing the Skyline Ditch special use permit. Jones and Kaul have no standing to demand a change in the conditions of the Skyline special use permit (a permit held by Skyline Ditch Company, not a party before the Court).
Plaintiffs argue that Okanogan County has standing because, in planning for water policy, Okanogan County works closely with (and depends on the decisions of) the federal agencies involved in this case. This relationship does not rise to the "concrete and particularized" interest required to establish standing. If Okanogan County owned property that would be affected by the special use permit, it may have been able to establish standing. See Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir, 1995); Churchill County v. Babbitt, 150 F.3d 1072, 1079 (9th Cir. 1998); Catron County Bd. of Comm'rs v. United States Fish Wildlife Serv., 75 F.3d 1429, 1438 (10th Cir. 1996). However, Okanogan County has not shown that it owns property that would be directly and greatly affected by the proposed action.
Endangered Species Act Overview
In this matter the Forest Service claims that the Endangered Species Act requires the Forest Service to exercise its power in imposing the minimum in-stream flow restrictions on the Early Winters special use permit. The Endangered Species Act, enacted in 1973, provides in relevant part:
Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species . . .16 U.S.C. § 1536. In Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978), the Supreme Court detailed the impact of the Endangered Species Act on the purposes of all federal agencies. The Endangered Species Act fundamentally changed the purpose of every federal agency:
Section 7 substantially amplifies the obligation of federal agencies to take steps within their power to carry out the purposes of this act. . . . The purposes of the bill included the conservation of the species and of the ecosystems upon which they depend, and every agency of government is committed to see that those purposes are carried out. The agencies of Government can no longer plead that they can do nothing about it. They can, and they must. The law is clear.
Id., at 183-84.
Note, however, that while the Endangered Species Act does fundamentally affect the purpose of every federal agency, the Endangered Species Act does not enlarge the powers of the agencies. Rather, each agency must take steps "within their power" to carry out the additional purposes. "[T]he statute directs agencies to `utilize their authorities' to carry out the Endangered Species Act's objectives; it does not expand the powers conferred on an agency by its enabling act." Platte River Whooping Crane Trust v. FERC, 962 F.2d 27, 34 (D.C. Cir. 1992); American Forest Paper Ass'n v. United States Envtl. Prof Agency, 137 F.3d 291 (5th Cir. 1998).
Here, the flow-rate conditions do not represent. an addition of Forest Service power but, rather, a. contraction. Before passage of the Endangered Species Act, the Forest Service had broad discretion in formulating conditions for special use permits—it could issue permits that would adversely affect endangered species. After passage of the Endangered Species Act, the Forest Service no longer has broad discretion—it no longer may issue permits that will adversely affect endangered species. Rather than expanding the power, the Endangered Species Act qualifies the scope of the existing power.
Moreover, as discussed above, the Organic Act and Multiple Use and Sustained Yield Act empower the Forest Service to impose minimum in-stream flow restrictions in a special use permit to protect fish. In complying with the Endangered Species Act, the Forest Service is not exercising a new power but, rather, considering a new factor (affects on endangered species) when exercising given powers.
Specific Objections
(1) Plaintiffs argue that because Defendants have no discretion to condition a special use permit by requiring minimum in-stream flows, Defendants have no basis for consultation on in.-stream flows. Having ruled that Defendants do have discretion to condition a special use permit by requiring minimum in-stream flows (see above), the Court finds that Section 7 consultation was properly triggered.
(2) Plaintiffs argue that the environmental baseline used for establishing the Early Winters Biological Opinion must include the impact of the current special use permit and use of existing water rights. The environmental baseline "includes the past and present impacts of Federal, State, or private actions and other human activities in the action area; the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early Section 7 consultation; and the impact of State or private actions which are contemporaneous with the consultation in progress." 50 C.F.R. § 402.02. Given that baseline, the agency must determine the impact of the current action (here, permit renewal). When consulting about the effects of a renewal permit relative to the environmental baseline, it is nonsensical to include that same renewal permit in the baseline. At Very least, Defendants did not abuse their discretion in determining the relevant baseline.
(3) Plaintiffs argue that 50 C.F.R. § 402.14(g)(4) is invalid, as it requires the agency to consider cumulative effects, specifically the effects of other existing water users (whose rights may be junior to Plaintiffs) and anticipated newcomers. Once Section 7 triggers consultation, the agency must evaluate all the effects of reissuing the special use permit, even if the agency does not have control over some effects. Although Defendants do not have control over all water users that effect the steelhead trout and bull trout, Defendants are charged with the responsibility of making sure that the powers they do have (including the power to issue special use permits) are not utilized to have an adverse effect on the protected animals.
(4) Plaintiffs argue that Defendants have abused their discretion in equating the "jeopardy" standard (a standard dealing with the survival of the species) with the "properly functioning conditions" or "recovery" standard (a higher standard dealing with the recovery of a species). The Court finds that the administrative record supports a finding that, at least for the specific situation of the fish at issue in this case, the actions that would ensure the species survival might be the same (or at least are an important factor to consider) as those needed to achieve recovery. This is not to say that "recovery" is always equal to "survival" but, rather, simply that in this case, for these fish, on this administrative record, it was not an abuse of discretion for the Defendants to so find.
(5) Plaintiffs argue that the National Marine Fisheries Service and Fish and Wildlife Service should have deferred to the Forest Service's "no authority" contention. The Court agrees that before issuing a special use permit, the Forest Service (and not the National Marine Fisheries Service and Fish and Wildlife Service) ultimately must determine whether the Forest Service has proper authority to include, conditions in the permit. There is no indication that the National Marine Fisheries Service and Fish and Wildlife Service have forced the Forest Service to include the conditions in the permit.
Violation of the Administrative Procedures Act (Fourth Cause of Action)
The Court finds that these defendants did not abuse their discretion in their efforts to comply with the Endangered Species Act.
Under the Administrative Procedures Act (APA), administrative agency action should be set aside if it is arbitrary and capricious, or an abuse of discretion, or not in accordance with the law. Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1401 (9th Cir. 1995).
Before engaging in "rule-making," an agency must provide the public notice and an opportunity to comment. The parties agree that National Marine Fisheries Service uses the "Habitat Approach" for Endangered Species Act consultation, and the public has been afforded neither public notice nor opportunity to comment. The question for the Court, then, is this: Is the "Habitat Approach" a rule? Case law suggests that the "Habitat Approach" is a rule if (1) it is controlling, (2) the agency treats it like a rule, (3) the agency leads applicants to believe that it is a rule, or (4) enforcement of agency policy is based on it. Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021. In determining whether the "Habitat Approach" is a rule, the critical factor is "the extent to which the challenged directive leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the announced policy in an individual case." Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987).
Here, Defendants have provided three examples in which, the National Marine Fisheries Service staff exercised the "discretion to dispense with this analytic tool altogether." See Defendants' Reply Memorandum, p. 13. The Court finds that the "Habitat Approach" is not a rule, and is not subject to the notice and continent requiremerits of the APA.
CONCLUSION
IT IS HEREBY ORDERED:
1. Plaintiffs' Motion for Summary Judgment (Ct. Rec. 37) is DENIED.
2. Defendants' Cross-Motion for Summary Judgment (Ct. Rec. 46) is GRANTED. IT IS SO ORDERED. The District Court Executive is directed to enter this order and to provide copies to counsel.