Opinion
3:21-cv-00512-RCJ-CSD
10-11-2022
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. 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 Aimufua U.S. Department of Justice Environment and Natural Resources Division Natural Resources Section 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. 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 Aimufua U.S. Department of Justice Environment and Natural Resources Division Natural Resources Section
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.
JOINT STIPULATION AMENDING 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 second amendment to the scheduling order, ECF 67, for the Court's consideration.
Due to unforeseen scheduling conflicts affecting the availability of Defendants' attorneys and unanticipated absences of federal agency staff, the Parties have agreed to extend the briefing schedule as set out below. Ormat also commits as part of this stipulation that it will temporarily pause construction of the Phase I power plant either until the U.S. Fish and Wildlife Service issues a Biological Opinion for the Project thereby concluding the Section 7 consultation process, or until February 28, 2023, whichever is sooner.
1. Federal Defendants and Ormat shall each file a brief in support of their crossmotions for summary judgment and responding to Plaintiffs' motion for summary judgment by October 28, 2022. Federal Defendants' brief and Ormat's brief shall each be limited to 45 pages. Federal Defendants and/or Ormat may also file a motion to strike concerning the admission of extra-record evidence concurrently with their combined responses/motions for summary judgment. If filed, the motion(s) to strike shall be limited to 15 pages.
2. 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 December 9, 2022. Plaintiffs' brief shall be limited to 60 pages. If a motion to strike is filed, Plaintiffs may respond concurrently with their reply/response. Plaintiffs' response opposing the motion(s) to strike shall be limited to 15 pages.
3. Federal Defendants' and Ormat's replies in support of their cross-motions for summary judgment will each be due on January 20, 2023, and each will be limited to 45 pages. If a motion to strike is filed, Federal Defendants and/or Ormat may reply concurrently with their reply in support of their cross-motions
for summary judgment. Replies in support of a motion to strike shall be limited to 10 pages.
4. 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 against them 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 based on the Administrative Record compiled by Federal Defendants. However, should the Court find that the introduction of extrarecord 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 briefing schedule outlined herein, and Ormat's intention to suspend construction until either completion of the Section 7 consultation process or until February 28, 2023, the Parties respectfully request expedited review by the Court, with a decision on the merits before the end of February 2023.
ORDER
IT IS SO ORDERED.