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Center for Biological Diversity v. Export-Import Bank of United States

United States District Court, Ninth Circuit, California, N.D. California, Oakland Division
Jun 2, 2014
4:12-cv-6325 SBA (N.D. Cal. Jun. 2, 2014)

Opinion

Sarah Uhlemann, Center for Biological Diversity, Seattle, WA, Admitted pro hac vice

Brendan Cummings, Center for Biological Diversity, Joshua Tree, CA,

Miyoko Sakashita, Center for Biological Diversity, San Francisco, CA, Attorneys for Plaintiffs.

SAM HIRSCH, Acting Assistant Attorney General, U.S. Department of Justice, Environment & Natural Resources Division.

MEREDITH L. FLAX, Senior Trial Attorney, Wildlife & Marine Resources Section, Washington, D.C.,

MELINDA HAAG, UNITED STATES ATTORNEY, MICHAEL T. PYLE, Assistant U.S. Attorney, San Jose, CA, Attorneys for Defendants.

KRISTOFOR SWANSON, Trial Attorney, Natural Resources Section, Washington, D.C., Attorneys for Defendants, [add'l attorneys in signature block].


JOINT PROPOSED SCHEDULE AND STIPULATION

SAUNDRA BROWN ARMSTRONG, District Judge.

The Parties hereby update the Court on their discussions regarding the administrative record and jointly propose and stipulate to the following schedule for further proceedings in this case:

Current Procedural Posture

Defendants filed their Motion to Dismiss the First Claim for Relief on November 12, 2013, and the motion has been fully briefed since December 10, 2013. See ECF No. 41. A hearing on the motion was originally scheduled for January 21, 2014 but was removed from the calendar. On May 30, 2014, the Parties jointly filed a notice pursuant to Civil L.R. 7-13, as Defendants' motion has been under submission for more than 120 days.

Defendants' motion to dismiss only addresses Plaintiffs' Endangered Species Act ("ESA") claim; Defendants have not moved to dismiss Plaintiffs' National Historic Preservation Act ("NHPA") or Freedom of Information Act ("FOIA") claims.

While Defendants' motion to dismiss has been pending, the Parties have been conferring in an attempt to resolve any disputes regarding the administrative record. On December 19, 2013, Defendants filed and produced the administrative record and privilege log. Plaintiffs raised several questions and concerns regarding the sufficiency of the record and log, and, in response, Defendants agreed to supplement and revise the record, indices, and log. In their February 24, 2014 Case Management Report, the Parties agreed that Defendants would provide a revised privilege log by February 28, 2014 and would supplement the record, as appropriate, by March 27, 2014. See ECF No. 50. However, the Court continued the March 5, 2014 and May 7, 2014 Telephonic Case Management Conferences and did not enter a scheduling order. Defendants provided Plaintiffs with revised administrative record indices and a revised privilege log by February 28, 2014, and with supplemental and revised administrative record documents over the past several months. Defendants filed a revised and amended administrative record with the Court on May 29, 2014.

Proposed Schedule for Further Proceedings

The Parties believe this case can be resolved on cross-motions for summary judgment based upon the administrative record. While Plaintiffs do not concede that the scope of the record, including all redactions and exclusions, is legally sufficient or would be appropriate in other circumstances, the Parties have nevertheless agreed that summary judgment briefing can and should proceed as soon as the Court resolves Defendants' pending motion to dismiss.

If Defendants rely on redacted information or withheld documents to support their summary judgment motion, Plaintiffs reserve the right to challenge Defendants' reliance on and/or privilege designations for any such documents. Plaintiffs and Defendants further reserve the right to assert, as necessary and appropriate, any applicable exceptions to the rules governing review based upon an administrative record and/or any defenses to any such assertions.

Additionally, the Parties recognize that the administrative record contains many very lengthy documents. Defendants' revised and amended administrative record contains nearly 50, 000 pages. At the November 13, 2013 case management conference, the Court had requested a courtesy hard copy of the administrative record. Given the on-going discussions regarding the adequacy of the record, and the revisions and amendments thereto, Defendants have not yet provided that courtesy copy. Such a hard copy, however, would fill nearly 50 four-inch binders. Rather than burden the Court with that much paper, the Parties have agreed and propose that, at the close of summary judgment briefing, Defendants will provide the Court with a hard-copy appendix containing those portions of the administrative record to which the Parties cite in briefing.

Based upon the foregoing, the Parties hereby propose and stipulate to the following schedule:

(1) The Parties will propose a summary judgment briefing schedule within 10 days of the Court's order granting or denying Defendants' motion to dismiss.

(2) Within the 21-days of the last brief allowed for in the summary judgment briefing schedule, Defendants will submit to the Court an appendix containing the administrative record documents (or relevant portions thereof) to which the Parties cited.


Summaries of

Center for Biological Diversity v. Export-Import Bank of United States

United States District Court, Ninth Circuit, California, N.D. California, Oakland Division
Jun 2, 2014
4:12-cv-6325 SBA (N.D. Cal. Jun. 2, 2014)
Case details for

Center for Biological Diversity v. Export-Import Bank of United States

Case Details

Full title:CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. EXPORT-IMPORT BANK…

Court:United States District Court, Ninth Circuit, California, N.D. California, Oakland Division

Date published: Jun 2, 2014

Citations

4:12-cv-6325 SBA (N.D. Cal. Jun. 2, 2014)