Opinion
Civil Action No. 1:11-cv-1534-AP.
September 8, 2011
Michael S. Freeman, Alison C. Flint, Earthjustice, Denver, CO, Sharon Buccino, Natural Resources Defense Council, Washington, DC, Attorney for Plaintiffs.
Ayako Sato, Jason A. Hill, U.S. Department of Justice, Environment Natural Resources Division, Washington, D.C., Attorney for Defendants.
John F. Shepherd, Sandra A. Snodgrass, Christopher L. Colclasure, Holland Hart LLP, Denver, CO, Attorney for Defendant-Intervenor Williams Production RMT Company, LLC.
Tom McNamara, Charles A. Breer, Davis Graham Stubbs LLP, Denver, Colorado, Attorney for Defendant-Intervenor Antero Resources Piceance Corporation.
ORDER
This matter is currently before me on the parties' Proposed Joint Case Management Plan (doc. 28). As detailed in their submission, numerous issues have proven contentious and my intervention is required.
I begin by determining the appropriate time for the filing of Plaintiffs' standing declarations. Defendants and Defendant-Intervenors argue that such declarations should be filed fourteen days after the administrative record is lodged. Plaintiffs oppose this requirement, instead proposing to file standing declarations as exhibits to their opening merits brief.
As an aside, I note that the parties differing positions only result in a sixty-one day difference.
Neither Defendants nor Defendant-Intervenors advance a credible argument in support of their position. The Tenth Circuit does not, as Defendants seem to suggest, require Plaintiffs to affirmatively establish their standing at a particular stage of the litigation. Although Plaintiffs have the persistent burden of establishing that they have standing throughout the course of litigation, there is no concrete deadline for meeting that burden. Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1484-85. In fact, any set deadline would be inconsistent with the continuing nature of Plaintiffs' burden.
Notably, if Defendants or Defendant-Intervenors believe Plaintiffs lack standing to bring their claims, they are not without recourse. Defendants or Defendant-Intervenors may challenge Plaintiffs' standing by filing a motion pursuant to Fed.R.Civ.P. 12(b)(1). See WildEarth Guardians v. Salazar, No. 1:10-cv-00011-AP (D. Colo. Nov. 10, 1010) (Doc. 28). Absent a compelling reason to the contrary, however, I refuse to impose an arbitrary deadline for Plaintiffs to establish their standing to bring this litigation. In accordance with accepted procedure, Plaintiffs may establish their standing by filing their standing declarations as exhibits to their opening merits brief. See, e.g., Center for Native Ecosystems, No. 1:09-cv-1463-AP (D Colo. Dec. 21, 2010) (Doc. 54-1 — 53-3).
This proceeding is governed by a hybridized approach using both the Federal Rules of Appellate Procedure and the Federal Rules of Civil Procedure. Although I held otherwise in Colorado Wild v. Vilsack, 713 F. Supp. 2d 1235, 1242, my statement of the law was overbroad and it should be limited to the facts of that case.
I next turn to the method for calculating the parties' agreed upon page limits. Defendants and Defendant-Intervenors argue that the cover page, tables, signature block, certificates, and any exhibits should count toward the page limits. Plaintiffs acquiesce to the proposal to include the cover page, tables, signature block, and certificates in the page limit, but they object to counting exhibits towards the page limits. They indicate that they intend to attach excerpts from the record to their opening merits brief in order to assist the Court. Plaintiffs also argue that because they alone will be required to submit standing declarations, this limitation disproportionately impacts their ability to argue the merits of their Petition.
The parties' inability to agree upon such quibbling details reminds me of Ralph Waldo Emerson's observation that "A foolish consistency is the hobgoblin of little minds. . . ."
Neither Defendants nor Defendant-Intervenors advance a tenable argument in support of their position. Although it is not necessary to attach excerpts from the administrative record as exhibits, Plaintiffs will not be punished for their efforts to ease the Court's burden by including relevant portions of the record as exhibits. Furthermore, Plaintiffs' standing declarations do not materially contribute to their argument on the merits of their petition for review. Including these exhibits in the page count would limit Plaintiffs' ability to fully develop their arguments, which would hinder the Court's ability to properly resolve this dispute. In light of these concerns, the parties' exhibits will not count towards the agreed upon page limits.
Having resolved these issues, I take this opportunity to remind the parties that litigation is, in its highest and most effective form, a cooperative exercise between both the parties and the court. Unnecessary bickering only detracts from the ultimate purpose of securing a "just, speedy, and inexpensive determination of every action and proceeding." Fed.R.Civ.P. 1. I refuse to participate in any gamesmanship, and further sharp practices will not be tolerated. The Joint Case Management Plan is attached to this Order and adopted as modified.
JOINT CASE MANAGEMENT PLAN
II. STATEMENT OF LEGAL BASIS FOR SUBJECT MATTER JURISDICTION
It is Plaintiffs' position that the Court has federal question jurisdiction under 28 U.S.C. § 1331. Defendants dispute that this Court has subject matter jurisdiction over this action as Plaintiffs have failed to establish standing and have failed to exhaust administrative remedies. Defendant-Intervenors concur with the Federal Defendants' jurisdictional statement. Defendant-Intervenor Antero Resources Piceance Corporation additionally asserts that this Court lacks jurisdiction because Plaintiffs have failed to establish that this action is ripe. Unless Defendants or Defendant-Intervenors challenge Plaintiffs' standing by filing a motion pursuant to Fed.R.Civ.P. 12(b)(1), standing shall be addressed in the parties' merit briefs.
III. DATES OF FILING OF RELEVANT PLEADINGS
Plaintiffs filed their Petition for Review of Agency Action on June 13, 2011 (Doc. 1). The U.S. Attorney's Office was served with the Petition on June 17, 2011. (See Doc. 17). Defendants filed their Answer to the Petition on August 16, 2011 (Doc. 27).
Defendant-Intervenor Williams Production RMT Company, LLC filed its Answer to the Petition on July 7, 2011.
Defendant-Intervenor Antero Resources Piceance Corporation filed its Answer to the Petition on August 15, 2011.
IV. UNUSUAL CLAIMS OR DEFENSES
N/A
V. OTHER MATTERS
VI. PROPOSED BRIEFING SCHEDULE
Colorado Environmental Coalition v. Salazar A. Deadline for Filing Administrative Record
Defendants shall lodge the administrative record by October 28, 2011. The administrative record shall be filed in a searchable electronic format (i.e., pdf).
B. Deadline for Parties to Confer on Record Disputes:
The parties shall confer on record disputes, if any, by December 9, 2011 (42 days after lodging the administrative record), and attempt to amicably resolve any issues concerning the administrative record before moving the Court for relief.
C. Deadline for Filing Motions to Complete and/or Supplement the Administrative Record, or for Discovery:
The parties shall file any motions to complete and/or supplement the administrative record by January 9, 2012 (31 days after deadline to confer on record disputes), if they are unable to resolve any issues concerning the administrative record. Plaintiffs' claims are to be reviewed pursuant to the Administrative Procedure Act (APA) based upon an administrative record to be compiled by Federal Defendants. See, e.g., Camp v. Pitts, 411 U.S. 138, 142 (1973) ("the focal point for judicial review" should be the administrative record compiled by the agency). Accordingly, Defendants and Defendant-Intervenors do not anticipate that any discovery will be necessary or appropriate for this case. Notwithstanding, to the extent any motions for leave to take discovery are filed, such motions shall be filed by January 9, 2012. Response and Reply deadlines for any motions filed under this paragraph are governed by Local Rule 7.1(C) with any response due no later than 21 days after any such motion is filed, and any reply due no later than 14 days after such response is filed.
If no motions are filed pursuant to this paragraph, merits briefing shall proceed according to the schedule below, paragraphs VI(D)-(F). If there are challenges to the administrative record, or requests to take discovery, the parties will file a proposed modified briefing schedule within 14 days after entry of the order(s) resolving such motion(s).
D. Plaintiffs' Opening Brief Due:
Plaintiffs shall file their opening brief by January 11, 2012 (33 days after the deadline for parties to confer on record disputes). The opening brief shall be limited to 45 pages. This page limit includes the cover page, tables, signature bock, and certificates. Any exhibits attached to the merits briefs will not be included in the 45-page limit.
E. Defendants' Response Brief Due:
Defendants and Defendant-Intervenors shall file their response brief(s) by February 27, 2012 (47 days after Plaintiffs' opening brief). Defendants' response brief, and any response brief by Defendant-Intervenors, shall each be limited to 45 pages, subject to the limitations noted above. Defendant-Intervenors shall comply with the Court's July 7, 2011 and August 15, 2011 orders granting intervention. (Dkt. ## 13, 24.)
F. Plaintiffs' Reply Brief Due:
Plaintiffs shall file their reply brief by March 28, 2012 (30 days after Defendants' response brief). Plaintiffs' reply brief shall be limited to no more than half the pages in the combined response briefs of Defendants and Defendant-Intervenors, subject to the limitations noted above.
VII. STATEMENT REGARDING ORAL ARGUMENT
A. Plaintiffs' Statement:
Plaintiffs request oral argument because this case has a fairly involved factual history, and may have far-reaching consequences for federal activities in western Colorado. Argument will assist the parties in explaining the issues fully and allow them to answer any questions the Court may have. B. Defendants' Statement:
Defendants and Defendannt-Intervenors agree that oral argument may provide assistance to this Court, and thus, all Defendants also request oral argument.
VIII. CONSENT TO EXERCISE OF JURISDICTION BY MAGISTRATE JUDGE
IX. EXTENSIONS OF TIME
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.
X. 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.