Opinion
3:21-cv-00512-RCJ-CSD
08-02-2022
THE FALLON PAIUTE-SHOSHONE TRIBE and the CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs, v. U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT, JAKE VIALPANDO in his official capacity as Field Manager of the Bureau of Land Management Stillwater Field Office, and ORMAT NEVADA INC., Defendants.
Timothy A. Lukas, Esq. (Nevada Bar No. 4678) Sarah C. Bordelon, Esq. Erica K. Nannini, Esq. Holland & Hart LLP Hadassah M. Reimer, Esq. Holland & Hart LLP Laura R. Jacobsen, Esq. Ormat Technologies, Inc. Attorneys for Defendant-Intervenor Ormat Nevada Inc. Gordon H. De Paoli Woodburn and Wedge Wyatt Golding Ziontz Chestnut Scott Lake Center for Biological Diversity Attorneys for Plaintiffs/Appellees - Fallon Paiute-Shoshone Tribe and Center for Biological Diversity Sara E. Costello U.S. Department of Justice Environment and Natural Resources Division Esosa Rachael Aimufua U.S. Department of Justice Environment and Natural Resources Division Kamela A. Caschette U.S. Department of Justice Environment and Natural Resources Division Wildlife and Marine Resources Section Holly A. Vance U.S. Attorney's Office Attorneys for Defendants/Appellants - U.S. Department of the Interior, Bureau of Land Management, and Jake Vialpando in his official capacity as Field Manager of the Bureau of Land Management Stillwater Field Office
Timothy A. Lukas, Esq. (Nevada Bar No. 4678) Sarah C. Bordelon, Esq. Erica K. Nannini, Esq. Holland & Hart LLP
Hadassah M. Reimer, Esq. Holland & Hart LLP
Laura R. Jacobsen, Esq. Ormat Technologies, Inc. Attorneys for Defendant-Intervenor Ormat Nevada Inc.
Gordon H. De Paoli Woodburn and Wedge
Wyatt Golding Ziontz Chestnut
Scott Lake Center for Biological Diversity Attorneys for Plaintiffs/Appellees - Fallon Paiute-Shoshone Tribe and Center for Biological Diversity
Sara E. Costello U.S. Department of Justice Environment and Natural Resources Division
Esosa Rachael Aimufua U.S. Department of Justice Environment and Natural Resources Division
Kamela A. Caschette U.S. Department of Justice Environment and Natural Resources Division Wildlife and Marine Resources Section
Holly A. Vance U.S. Attorney's Office Attorneys for Defendants/Appellants - U.S. Department of the Interior, Bureau of Land Management, and Jake Vialpando in his official capacity as Field Manager of the Bureau of Land Management Stillwater Field Office
PARTIES' JOINT STIPULATION ON SCHEDULING ORDER
Plaintiffs Fallon Paiute-Shoshone Tribe (“FPST”) and the Center for Biological Diversity (“CBD”), Federal Defendants U.S. Department of the Interior, et al. (“Federal Defendants”), and Defendant Ormat Nevada, Inc. (“Ormat”) (together, the “Parties”) have conferred and hereby jointly submit the following stipulation and scheduling proposal for the Court's consideration.
Plaintiffs filed this case on December 15, 2021, alleging that the Bureau of Land Management's (“BLM”) approval of the Dixie Meadows Geothermal Utilization Project (the “Project”) violated the Administrative Procedure Act, National Environmental Policy Act, Federal Land Policy and Management Act, and the Religious Freedom Restoration Act. ECF No. 1. Plaintiffs filed a motion for preliminary injunction to stop Project construction (ECF No. 13), and this Court granted the motion, but only for a period of 90 days (ECF No. 41). The Parties' cross-appealed to the Ninth Circuit Court of Appeals, which affirmed this Court's decision. FPSTv. DOI, Nos. 22-15092, 15093 (9th Cir. Aug. 1, 2022) (slip opinion).
On April 7, 2022, the U.S. Fish and Wildlife Service (“FWS”) exercised its emergency listing authority under the Endangered Species Act (“ESA”) to list the Dixie Valley toad as endangered for a period of 240 days, triggering ESA Section 7 consultation obligations between BLM and the FWS for the Project. BLM and the FWS have begun informal consultation and are working toward completing formal consultation. Federal Defendants lodged the Administrative Record on April 29, 2022. On July 6, 2022, Plaintiffs filed their First Amended Complaint adding ESA claims under Section 7 regarding the project's alleged impacts to the Dixie Valley toad and BLM's consultation with FWS, and under Section 9 regarding BLM's and Ormat's alleged “take” of Dixie Valley toad during Project construction and operation (together, the “ESA Claims”). Ormat states that it is currently working collaboratively with BLM and FWS through the Section 7 consultation process, including discussion and identification of potential additional mitigation measures. In coordination with BLM and FWS and in an effort to support the Section 7 consultation process, Ormat has determined that it will temporarily pause construction of the Phase I power plant either until the FWS issues a Biological Opinion for the Project thereby concluding the Section 7 consultation process, or until December 31, 2022, whichever is sooner.
In light of these developments, the Parties have agreed as follows:
1. Ormat will provide notice to the Parties at least 30 days prior to reinitiating construction of the power plant facilities at the Dixie Meadows site.
2. Plaintiffs will not file any motion for preliminary injunction or temporary restraining order regarding the Project unless they receive notice that Ormat intends to reinitiate construction.
3. BLM will lodge the Administrative Record for the ESA Claims with the Court and provide an electronic copy to the Parties by August 5, 2022.
4. Plaintiffs and Ormat will have 14 days from the lodging of the Administrative Record on August 5, 2022 to: (1) identify and communicate to Federal Defendants any issues regarding completeness of the Administrative Record and/or any requests for the admission of extra-record evidence; and (2) provide Federal Defendants with copies of any materials they seek to include in the Administrative Record or admit as extra-record evidence.
5. Federal Defendants will respond to any issues raised by Plaintiffs or Ormat regarding the contents of the Administrative Record and the admission of extra record evidence no later than September 2, 2022. The Parties thereafter will attempt in good faith to resolve any issues that are raised. Any subsequent motions regarding the Administrative Record will be due on September 9, 2022.
6. If Plaintiffs or Ormat file any motions regarding the Administrative Record, the Parties shall meet and confer for the purposes of agreeing upon a schedule for resolving those motions and briefing the Parties' cross-motions for summary judgment. If no motions regarding the Administrative Record are filed, Plaintiffs' opening summary judgment brief will be due on September 9, 2022, and will be limited to 60 pages.
7. If no Administrative Record motions are filed, the Federal Defendants' and Ormat's combined responses to Plaintiffs' motions for summary judgment and opening briefs in support of their cross-motions for summary judgment will be
due on October 7, 2022. Federal Defendants and Ormat shall each file a brief in support of their cross-motions for summary judgment and responding to Plaintiffs' motion for summary judgment. Federal Defendants' brief and Ormat's brief shall each be limited to 45 pages.
8. If no Administrative Record motions are filed, Plaintiffs shall file a combined reply in support of their summary judgment motion and in response to Federal Defendants' and Ormat's cross-motions for summary judgment, which will be due on October 28, 2022. Plaintiffs' brief shall be limited to 60 pages.
9. If no Administrative Record motions are filed, Federal Defendants' and Ormat's replies in support of their cross-motions for summary judgment will each be due on December 2, 2022, and each will be limited to 45 pages.
10. Plaintiffs do not waive any claims under the ESA or Religious Freedom Restoration Act (“RFRA”) which may not be resolved on summary judgment due to unresolved issues of material fact. Plaintiffs take the position that because the ESA and RFRA each provide their own cause of action, claims under these statutes are not limited in scope by the APA and thus may not be limited to the administrative record compiled by the agency. Federal Defendants' take the position that ESA Claims are record-review claims governed by both the scope and standard of the APA that do not present any unresolved issues of material fact. Further, Federal Defendants and Ormat take the position that summary judgment and the briefing schedule set forth above can resolve all claims in Plaintiffs' First Amended Complaint. .
Federal Defendants also take the position that because Plaintiffs' APA claims challenge a final agency action, those claims in this case should be decided primarily based on the Administrative Record compiled by Federal Defendants. However, should the Court find that the introduction of extra-record evidence is appropriate, the Parties do not waive their right to seek discovery regarding the RFRA and ESA claims.
In light of the Parties' commitment to the expedited briefing schedule outlined herein, and Ormat's intention to suspend construction until either completion of the Section 7 consultation process or the end of the year, the Parties respectfully request expedited review by the Court, with a decision on the merits before the end of 2022.
IT IS SO ORDERED.