Tri-Valley Cares v. United States Department of Energy

Full title: TRI-VALLEY CARES, NUCLEAR WATCH OF NEW MEXICO, MARYLIA KELLEY, JANIS KATE…

Court: United States District Court, N.D. California

Date published: Jan 22, 2007

Civ. No. C-0-3-3926 SBA (N.D. Cal. Jan. 22, 2007)

Opinion

Civ. No. C-0-3-3926 SBA.

January 22, 2007

STEPHAN C. VOLKER (CSB #63093), JOSHUA A.H. HARRIS (CSB #226898), MARNIE E. RIDDLE (CSB #233732), LAW OFFICES OF STEPHAN C. VOLKER, Oakland, California.

ALLETTA BELIN, ESQ., BELIN SUGARMAN, Santa Fe, New Mexico., Attorneys for Plaintiffs, TRI-VALLEY CARES, NUCLEAR, WATCH OF NEW MEXICO, MARYLIA KELLEY, JANIS KATE TURNER, TARA DORABJI, HENRY C. FINNEY and CATHERINE SULLIVAN.

NOTICE OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF JUDGMENT UNDER F.R. Civ. P. 58(d); MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF COUNSEL; [PROPOSED] ORDER

SAUNDRA ARMSTRONG, District JudgePage 2

TO THE ABOVE-ENTITLED COURT AND TO THE PARTIES HEREIN:

PLEASE TAKE NOTICE that plaintiffs Tri-Valley CARES, et al., hereby move this Court pursuant to Rule 58(e), Federal Rules of Civil Procedure, for an order directing entry of Judgment in this matter.

MEMORANDUM IN SUPPORT OF MOTION

The grounds for this request are that (1) on October 16, 2006, the Ninth Circuit Court of Appeal entered its Judgment directing that the prior judgment of this Court be affirmed in part, reversed in part, and remanded, (2) on October 30, 2006 this Court remanded this matter to defendants "for further proceedings consistent with the Ninth Circuit's decision," and (3) the Clerk of this Court, by Memorandum filed November 30, 2006, denied plaintiffs' request for an award of its costs on the grounds that "[p]ursuant to 28 U.S.C. § 1924 there is no judgment or order for plaintiffs under which costs may be claimed."

A true copy of the Deputy Clerk's November 30, 2006 decision refusing to award costs to plaintiffs in this action is annexed as Exhibit 1. A true copy of this Court's Order dated October 30, 2006 is annexed as Exhibit 2. A true copy of the Ninth Circuit Court of Appeal's Judgment dated October 16, 2006 is annexed as Exhibit 3.

Rule 58(d) of the Federal Rules of Civil Procedure provides as follows:

A party may request that judgment be set forth on a separate document as required by Rule 58(a)(1).

Rule 58(a)(2)(B) directs that:

The court must promptly approve the form of the judgment, which the clerk must promptly enter, when: . . . (ii) the court grants other relief not described in Rule 58(a)(2).

It appears that this Court's order dated October 30, 2006 remanding this matter to the defendants for further proceedings consistent with the Court of Appeal's ruling constitutes the "grant[ing of] other relief not described in Rule 58(a)(2)," and thus under Rule 58(2)(B)(ii), triggers the Court's obligation to "promptly approve the form of the judgment, which the clerk must promptly enter. . . . "

If the Court would prefer, plaintiffs will prepare a separate form of Judgment for entry by the Court.

Respondents through their counsel Barclay T. Samford agreed not to oppose this motion for entry of Judgment, as documented in the following Declaration of Counsel.

For the foregoing reasons, plaintiffs respectfully request that this Court enter Judgment in this matter as soon as possible.

DECLARATION OF COUNSEL

I, Stephan C. Volker, hereby declare:

1. I am counsel to plaintiffs and have personal knowledge of the following facts.

2. The facts recounted in the foregoing Memorandum are true and correct.

3. On December 1, 2006, I conferred by telephone with Barclay Samford, Justice Department attorney representing defendants in this matter. Mr. Samford agreed on behalf of defendants not to oppose plaintiffs' motion for entry of Judgment under Rule 58.

I declare under penalty of perjury that the foregoing facts are true of my personal knowledge, that I am competent to and if called would so testify, and that this Declaration was executed on December 12, 2006, in Oakland, California.

[PROPOSED] ORDER

Pursuant to Rule 58(d) of the Federal Rules of Civil Procedure, the motion of plaintiffs Tri Valley CARES, et al., for entry of judgment in this matter is hereby GRANTED.

Plaintiffs shall prepare a form of Judgment satisfactory to defendants and submit the same for this Court's review, approval and entry within ten days of this Order.

EXHIBIT 1

UNITED STATES DISTRICT COURT Northern District of California 1301 Clay Street Oakland, California 94612 ____________________ www.cand.uscourts.gov Richard W. Wieking General Court Number Clerk 510.637.3530 November 30, 2006 C-03-3926-SBA Tri-Valley Cares et al. v. Department of Energy et al. On September 10, 2004 in the above entitled case the Court entered an Order Granting Defendants' Motion for Summary Judgment and Denying Plaintiffs' Motion for Summary Judgment or in the alternative Partial Summary Judgment.

On October 30, 2006 the Court entered an Order Remanding this case to the Department of Energy for further proceedings consistent with the Court of Appeal decision.

Pursuant to 28 U.S.C. § 1924 there is no judgment or order for Plaintiffs under which costs may be claimed.

Frances Stone, Deputy Clerk October 30, 2006 defendants 210.00 34.60 28 U.S.C. 1923 28 U.S.C. 18282,141.01 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TRI-VALLEY CARES BILL OF COSTS V. UNITED STATES DEPARTMENT OF ENERGY Case Number: C-0-3-3926 SBA ------------------------------------- Judgment having been entered in the above entitled action on against ________, Date the Clerk is requested to tax the following as costs: Fees of the Clerk ...................................................................................... $____ Fees for service of summons and subpoena ............................................................... ______ Fees of the court reporter for all or any part of the transcript necessarily obtained for usein the case ___________ Fees and disbursements for printing .................................................................... 1,896.41___ Fees for witnesses (itemize on reverse side) ........................................................... ___________ Fees for exem plification and copies of papers necessarily obtained for use in the case ................ ___________ Docket fees under ....................................................................... ___________ Costs as shown on Mand ate of Court of Appeals ......................................................... ___________ Compensation of court-appointed experts ................................................................ ___________ Compensation of interpreters and costs of special interpretation services under ......... ___________ Other costs (please itemize) ........................................................................... ___________ TOTAL $ SPECIAL NOTE: Attach to your bill an itemization and documentation for requested costs in all categories.

DECLARATION

I declare under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this bill was mailed today with postage prepaid to: UNITED STATES DEPARTMENT OF ENERGYSTEPHAN C. VOLKER TRI-VALLEY CARES Signature of Attorney: ____________________________________________________ Name of Attorney: _____________________________ For: ___________________________________________ Date:__________ Name of Claiming Party Costs are taxed in the amount of _______________________________________ and included in the judgment. RICHARD W. WIEKING _________________________ By: _______________________ ___________________________ Clerk of Court Deputy Clerk Date

EXHIBIT 2

ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TRI-VALLEY CARES et al., No. C 03-3926 SBA Plaintiffs, v. DEPARTMENT OF ENERGY et al. Defendants. On October 16, 2006, the Ninth Circuit Court of Appeals issued a memorandum disposition, affirming in part and reversing in part this Court's grant of summary judgment in this case. Accordingly,

IT IS HEREBY ORDERED that the case is REMANDED to the Department of Energy for further proceedings consistent with the Ninth Circuit's decision. Specifically, the DOE shall consider whether the threat of terrorist activity necessitates the preparation of an Environmental Impact Statement. See San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006).

IT IS SO ORDERED.

EXHIBIT 3

JUDGMENT UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TRI-VALLEY CARES; et al., No. 04-17232 D.C. No. CV-03-03926-SBA Plaintiffs — Appellants, v. DEPARTMENT OF ENERGY; et al., Defendants — Appellees. Appeal from the United States District Court for the USDC-CAO — U.S. DISTRICT COURT CALIFORNIA NORTHERN.

This cause came on to be heard on the Transcript of the Record from the United States District Court for the USDC-CAO — U.S. DISTRICT COURT CALIFORNIA NORTHERN and was duly submitted.

On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said District Court in this cause be, and hereby is AFFIRMED IN PART, REVERSED IN PART, REMANDED. United States Court of Appeals for the Ninth Circuit No. Title Agency/D.C. No.

Office of the Clerk 95 Seventh Street Post Office Box 193939 San Francisco, California 94119-3939 December 8, 2006 Alletta d'A. Belin BELIN SUGARMAN 618 Paseo de Peralta Santa Fe, NM 87501 Gretchen Elizabeth Dent Law Offices of Stephen C. Volker Suite 1300 436 14th Street Oakland, CA 94612 Stephan C. Volker, Esq. Ste. 1300 436 — 14th St. Oakland, CA 94612 Joshua Alexander Harris Law Offices of Stephan C. Volker Suite 1300 436 14th Street Oakland, CA 94612 Barclay T. Samford, Esq. DOJ — U.S. DEPARTMENT OF JUSTICE Environment Natural Resources Division Suite 945 999 — 18th St. Denver, CO 80202 Benjamin Longstreth, Esq. DOJ — U.S. DEPARTMENT OF JUSTICE Environment Natural Resources Division P.O. Box 663 Washington, DC 20044 John A. Bryson, Esq. DOJ — U.S. DEPARTMENT OF JUSTICE Environment Natural Resources Division P.O. Box 23795, L'Enfant Plaza Station Washington, DC 20026 Todd S. Aagaard, Esq. DOJ — U.S. DEPARTMENT OF JUSTICE Environment Natural Resources Division P.O. Box 23795, L'Enfant Plaza Station Washington, DC 20026 USDC, Oakland USDC-CAO — U.S. DISTRICT COURT CALIFORNIA NORTHERN Suite 400S 1301 Clay St. Oakland, CA 94612 04-17232 Tri-Valley Cares v. Department of Energy CV-03-03926-SBA Dear Clerk:

The following document in the above listed cause is being sent to you under cover of this letter.

• Certified copy of the Decree of the Court

The record on appeal will follow under separate cover. Please acknowledge receipt on the enclosed copy of this letter.

Very truly yours, Cathy A. Catterson Clerk of Court

PROOF OF SERVICE

I am a citizen of the United States of America; I am over the age of 18 years and not a party to within entitled action; my business address is 436 14th Street, Suite 1300, Oakland, California 94612.

On December 12, 2006, I served a true copy of the foregoing documents entitled

NOTICE OF PLAINTIFFS' UNOPPOSED MOTION FOR ENTRY OF JUDGMENT UNDER F.R. Civ. P. 58(d); [PROPOSED] ORDER

in the above-captioned matter on each of the persons listed below by electronic facsimile transmission and by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at Oakland, California addressed as follows:^th

Thomas L. Sansonetti, Assistant Attorney General Barclay T. Samford, Trial Attorney U.S. Department of Justice Environment and Natural Resources Div. Suite 945, North Tower 999 18 Street Denver, CO 80202 Tel: (303) 312-7362 Fax: (303) 312-7379 Alletta Belin, Esq. Belin Sugarman 618 Paseo de Peralta Santa Fe, NM 87501 Tel: (505) 983-8936 Fax: (505) 983-0036 I certify under penalty of perjury that the foregoing is true and correct. Executed on December 12, 2006 at Oakland, California.

Teddy Ann Fuss