Opinion
Civil Action No. 12-cv-00048-AP
04-05-2012
NATIONAL SKI AREAS ASSOCIATION, INC., PETITIONER, v. UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, UNITED STATES DEPARTMENT OF AGRICULTURE, and HARRIS SHERMAN, Under Secretary for Natural Resources and Environment of United States Department of Agriculture, RESPONDENTS.
Ezekiel J. Williams Christopher S. Mills Steven K. Imig Ducker Montgomery Lewis & Bess, P.C. Denver, CO 80202 Attorneys for Petitioners UNITED STATES ATTORNEY John Walsh United States Attorney Stephen Taylor Assi stant United States Attorney Denver, CO 80202 Ignacia S. Moreno Assistant Attorney General U.S. Department of Justice Barclay T. Samford Trial Attorney, Natural Resources Section United States Department of Justice Environment & Natural Resources Division South Terrace, Suite 370 Telephone: 303-844-1475 Attorneys for Respondents
JOINT CASE MANAGEMENT PLAN FOR PETITION FOR REVIEW
OF AGENCY ACTION
1. APPEARANCES OF COUNSEL
For Petitioner
Ezekiel J. Williams
Christopher S. Mills
Steven K. Imig
Ducker Montgomery Lewis & Bess, P.C.
For Respondents:
John Walsh
United States Attorney
Stephen Taylor
Assistant United States Attorney
Denver, CO 80202
Ignacia S. Moreno
Assistant Attorney General
U.S. Department of Justice
Barclay T. Samford
Trial Attorney, Natural Resources Section
United States Department of Justice
Environment & Natural Resources Division
South Terrace, Suite 370
2. STATEMENT OF LEGAL BASIS FOR SUBJECT MATTER JURISDICTION
The Court has federal question jurisdiction under 28 U.S.C. § 1331, the Administrative Procedure Act, 5 U.S.C. § 706, and the Regulatory Fairness Act, 5 U.S.C. § 611.
Respondents may assert the following jurisdictional defenses: failure to state a claim, standing and ripeness. Respondents do not waive their right to assert any other applicable jurisdictional defenses.
3. DATES OF FILING OF RELEVANT PLEADINGS
A. Date Petition for Review Was Filed:
The Original Complaint was filed January 9, 2012. The First Amended Complaint was filed March 12, 2012.
B. Date Petition for Review Was Served on U.S. Attorney's Office:
The Original Complaint was personally served on the U.S. Attorney's Office on January 10, 2012. The First Amended Complaint was served through the Court's ECF system on the date of its filing, March 12, 2012.
B. Date Answer or Other Response Was Filed:
Respondents filed their Answer to the First Amended Complaint on March 26, 2012.
4. STATEMENT(S) REGARDING WHETHER THIS CASE RAISES UNUSUAL
CLAIMS OR DEFENSES
Petitioner seeks a nationwide injunction of a Forest Service policy that was adopted without the procedures mandated by the Administrative Procedure Act, National Forest Management Act, and Regulatory Fairness Act. Respondents deny that the statutory procedures cited by Petitioner apply to the challenged action, and deny that that challenged action is contrary to law or agency authority.
5. OTHER MATTERS
None.
6. BRIEFING SCHEDULE
The parties have conferred, and propose the schedule set forth below. The parties agree that the merits briefs shall comply with the rules of the United States Court of Appeals for the Tenth Circuit regarding length.
A. Deadline for Filing Administrative Record:
May 2, 2012.
B. Deadline for Parties to Confer on Record Disputes:
May 11, 2012.
C. Deadline for Filing Motions to Complete and/or Supplement the Administrative Record:
May 18, 2012.
D. Petitioner's Opening Brief Due:
If the Parties file no motions to complete or supplement the administrative record, Petitioner's Opening Brief shall be filed no later than June 1, 2012.
If either Party files a motion to complete or supplement the record, Petitioner's Opening Brief shall be filed no later than 20 days after resolution of such motions.
E. Respondents' Response Brief Due:
Thirty (30) days following the filing of Petitioner's Opening Brief.
F. Petitioner's Reply Brief (If Any) Due:
Fifteen (15) days following the filing of Respondents' Response Brief.
7. STATEMENTS REGARDING ORAL ARGUMENT
A. Petitioner's Statement:
Petitioner submits that the policy implications of the Forest Service water rights directive, and Petitioner's requested nationwide injunction, warrant oral argument. Petitioner anticipates that oral argument would assist the Court in resolving the claims based on the record.
B. Respondents' Statement:
Respondents concur that the legal issues raised in Petitioner's petition warrant oral argument.
8. CONSENT TO EXERCISE OF JURISDICTION BY MAGISTRATE JUDGE
Indicate below the parties' consent choice.
A. () All parties have consented to the exercise of jurisdiction of a United States Magistrate Judge.
B. (X) All parties have not consented to the exercise of jurisdiction of a United States Magistrate Judge.
9. OTHER MATTERS
None at this time.
10. AMENDMENTS TO JOINT CASE MANAGEMENT PLAN
The parties agree that the Joint Case Management Plan may be altered or amended only upon a showing of good cause.
BY THE COURT:
John L. Kane
U.S. DISTRICT COURT JUDGE
APPROVED:
_________________
Ezekiel J. Williams
Christopher S. Mills
Steven K. Imig
Ducker Montgomery Lewis & Bess, P.C.
Denver, CO 80202
Attorneys for Petitioners
UNITED STATES ATTORNEY
John Walsh
United States Attorney
Stephen Taylor
Assi stant United States Attorney
Denver, CO 80202
Ignacia S. Moreno
Assistant Attorney General
U.S. Department of Justice
_________________
Barclay T. Samford
Trial Attorney, Natural Resources Section
United States Department of Justice
Environment & Natural Resources Division
South Terrace, Suite 370
Telephone: 303-844-1475
Attorneys for Respondents