Opinion
Civil Action No.: 12-cv-01269-AP
02-13-2013
WILDEARTH GUARDIANS, Plaintiff/Petitioner, v. KEN SALAZAR, Defendant/Respondent.
MISTY K. EWEGEN CO Bar # 38209 DC Bar # 986495 Ellis, Wright, & Ewegen LLP Attorney for Plaintiff/Petitioner TRAVIS J. ANNATOYN NY Bar # 4983730 Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section
JOINT PROPOSED CASE MANAGEMENT PLAN
1. APPEARANCES OF COUNSEL
For Plaintiff/Petitioner WildEarth Guardians:
MISTY K. EWEGEN
CO Bar #38209
DC Bar # 986495
For Defendant/Respondent Ken Salazar:
TRAVIS J. ANNATOYN
NY Bar # 4983730
Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Ben Franklin Station, P.O. Box 7611
2. STATEMENT OF LEGAL BASIS FOR SUBJECT MATTER JURISDICTION
Plaintiff asserts that this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346 (U.S. as a defendant), 28 U.S.C. §§ 2201-2202 (declaratory and injunctive relief), 16 U.S.C. §§ 1540(c) and (g) (action arising under the Endangered Species Act ("ESA") and citizen suit provision), and 5 U.S.C. §§ 701-706. Plaintiff provided Defendant with the written notice of the claims alleged in the Complaint and intent to sue. See 16 U.S.C. § 1540(g). Plaintiff further asserts that it has Constitutional, Article III, standing to maintain the action and that venue rests properly in the District of Colorado.
Defendant Secretary of the Interior Ken Salazar reserves the right to assert jurisdictional defenses, including challenging Plaintiff's standing under Article III.
3. DATES OF FILING OF RELEVANT PLEADINGS
A. Date Petition for Review Was Filed:
May 14, 2012.
B. Date Petition for Review Was Served on U.S. Attorney's Office:
October 23, 2012.
C. Date Answer or Other Response Was Filed:
January 23, 2013. Defendant has not yet filed an administrative record. Defendant proposes to file the administrative record by March 22, 2013. Plaintiff does not object to this deadline.
4. STATEMENT(S) REGARDING WHETHER THIS CASE RAISES UNUSUAL CLAIMS OR DEFENSES
A. Plaintiff's Statement: Plaintiff asserts that this case is a typical administrative appeals case concerning Plaintiff's petition as to a single species. The species at issue, the Flathead Pondsnail, is found in one lake in Montana, Flathead Lake, where Plaintiff's members recreate frequently and enjoy the Flathead Pondsnail's habitat for recreational, aesthetic, and scientific purposes. Plaintiff is confident it will be able to establish standing to proceed to the merits of the case.
B. Defendant's Statement: Defendant believes this case raises no unusual claims or defenses.
5. OTHER MATTERS
Defendant proposes filing the administrative record on or before March 22, 2013. Plaintiff has not yet had an opportunity to review the record and cannot presently make any statements as to the record's adequacy. Plaintiff proposes that any motions concerning the contents of the Record be filed within 21 days of Defendant's filing of the Record. Defendant does not object to this deadline.
Plaintiff intends to support its Opening Brief on the Merits with one or more declarations to provide the evidentiary support upon which Plaintiff can establish Article III standing. If, after reviewing these documents, Defendant determines that jurisdictional discovery concerning Guardians' alleged standing is necessary, Defendant will file a motion for leave to conduct jurisdictional discovery. If Defendant files such motion, the parties agree that the summary judgment briefing schedule will automatically be suspended until the motion is resolved and, if granted, any discovery is completed. The parties will file a revised briefing schedule within seven days of the Court's decision on Defendant's motion to conduct jurisdictional discovery.
While the parties agree that the Court must, in accordance with Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994), generally manage this case under the Federal Rules of Appellate Procedure, the parties do not intend to style their briefs in strict adherence to the service, formatting, and hard copy requirements of Fed. R. App. P. Rules 31 and 32, and do not intend to file appendices in lieu of Federal Defendant's forthcoming Administrative Record. The parties agree that each opening brief on the merits will not exceed 30 pages in length, and that Plaintiff's reply brief will not exceed 20 pages.
6. BRIEFING SCHEDULE
A. Deadline for Filing Administrative Record:
March 22, 2013.
B. Deadline for Parties to Confer on Record Disputes:
March 29, 2013.
C. Deadline for Filing Motions to Complete and/or Supplement the Administrative Record:
April 12, 2013.
D. Plaintiff's Opening Brief Due:
May 22, 2013.
E. Defendant's Motion for Jurisdictional Discovery Due: June 5, 2013.
F. Defendant's Response Brief Due: June 24, 2013.
G. Plaintiff's Reply Brief Due:
July 8, 2013.
7. STATEMENTS REGARDING ORAL ARGUMENT
A. Plaintiff's Statement: The ESA is a unique and fairly specialized area of law. Plaintiff believes that oral argument would assist the Court in its resolution of this case.
B. Defendant's Statement: Defendant does not specifically request oral argument in this case.
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
The parties understand that parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 5.1 G by submitting proof that a copy of the motion has been served upon all attorneys of record and all pro se parties, and that parties filing motions for extension of time or continuances must comply with D.C.COLO.LCivR 6.1E by serving such motion on the Moving Attorney's Client.
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.
APPROVED:
BY THE COURT
John L. Kane
U.S. District Court Judge
________
MISTY K. EWEGEN
CO Bar # 38209
DC Bar # 986495
Ellis, Wright, & Ewegen LLP
Attorney for Plaintiff/Petitioner
________
TRAVIS J. ANNATOYN
NY Bar # 4983730
Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Attorney for Defendant/Respondent