Free Joint Status Report - District Court of Federal Claims - federal

Case 1:05-cv-00381-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

ARKANSAS GAME & FISH COMMISSION Plaintiff

) ) ) ) v. ) ) UNITED STATES OF AMERICA ) ) Defendant ) ____________________________________)

No. 05-381 L Judge Charles F. Lettow

JOINT STATUS REPORT Plaintiff, Arkansas Game & Fish Commission, and Defendant, United States of America, by and through their respective counsel, hereby submit this Joint Status Report pursuant to the Court's order dated November 16, 2006. A. PENDING MOTIONS One motion is pending before the Court: Defendant's Motion for Modification of Fact Discovery Schedule. 1. Plaintiff's Position

Plaintiff has filed a response to Defendant's motion, opposing further extension of the fact discovery deadline for the following reasons: (1) Defendant created its own delay by waiting until just before the close of fact discovery to begin trying to take the tree core information; (2) the information has already been collected by Plaintiff's experts and is available for inspection by Defendant and its experts; and (3) the period for completing fact discovery already has been extended substantially to accommodate Defendant and an additional extension will cause further delay in preparing this case for trial. Plaintiff respectfully urges the Court to 1

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deny Defendant's request so that expert discovery and final trial preparations by the parties can promptly proceed to completion. 2. Defendant's Position

On May 25, 2007, Defendant moved for a modification of the fact discovery schedule, requesting a relatively small modification to allow Defendant an opportunity to take tree increment core samples on the Dave Donaldson-Black River Wildlife Management Area ("WMA"). Although Defendant has been in discussions with Plaintiff since April 4, 2007 regarding the desired tree core sampling, flooding on the property has precluded this discovery from proceeding. Plaintiff filed its response on June 8, 2007, and Defendant will file its reply by June 22, 2007. B. DISCOVERY Plaintiff filed this action in March 2005. The original fact discovery deadline was scheduled for May 1, 2006. The Court has granted three extensions of this deadline. Two extensions (to September 1, 2006 and October 2, 2006) were granted upon joint motions of the parties. The Court granted a third extension (to May 31, 2007) upon motion of Defendant and over objection of Plaintiff. In modifying the fact-discovery schedule to May 31, 2007, the Court also ruled that Defendant could place piezometers on the WMA and that "the piezometers shall remain in place throughout the summer of 2007." Arkansas Game & Fish Commission v. United States, 74 Fed. Cl. 426, 434 (2006). Defendant notes that the Court also stated "that expert work and discovery would not begin until after the data from the piezometers was in hand." Id. at 43334. (Plaintiff believes that this reference by the Court to expert work and discovery was not intended to be read as requiring postponement of the beginning of expert discovery until after final removal of the piezometers). Defendant has recently moved for a modification of the fact

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discovery, as set forth in Section A above. During the fact discovery period, the parties have exchanged several thousand pages of documents pursuant to multiple discovery requests. Plaintiff has taken ten (10) fact depositions, and Defendant has taken thirteen (13) fact depositions. The parties stipulated that more than ten (10) depositions could be taken, pursuant to Rule 30(a)(2)(A) of the Rules of the Court of Federal Claims. The parties anticipate that expert depositions will also be taken in the case. See Part C. C. DISCOVERY PLAN 1. Plaintiff's Position

Plaintiff proposes the following deadlines for expert discovery: Plaintiff provides Defendant with Plaintiff's expert reports Defendant provides Plaintiff with Defendant's expert reports Plaintiff provides Defendant with any rebuttal reports Discovery of Expert Opinions (including written discovery and depositions) July 31, 2007 September 12, 2007 October 10, 2007 December 14, 2007

Plaintiff respectfully requests a dispositive motion deadline of February 15, 2007, and a trial date during the spring of 2008. Upon the setting of a trial date, Plaintiff requests that the Court set appropriate deadlines for mutual exchange of witness and exhibit lists and the filing of pre-trial motions. 2. Defendant's Position

Defendant proposes the following expert discovery schedule:

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Defendant's experts shall remove piezometers from Dave Donaldson-Black River Wildlife Management Area by 1: Plaintiff shall disclose its expert witnesses' identities by 2: Plaintiff shall disclose its expert witnesses' reports: Defendant shall disclose its expert witnesses' identities by 3: Defendant shall disclose its expert witnesses' reports by: Plaintiff shall disclose its expert witnesses' rebuttal reports by: Expert discovery shall end on: The parties shall file dispositive motions, if applicable, by:

September 30, 2007

October 12, 2007 November 9, 2007 November 16, 2007 December 21, 2007 February 1, 2008 March 31, 2008 May 9, 2008

After the Court rules on any dispositive motions, Defendant suggests that the parties propose a schedule for further proceedings in the case, if necessary. E. SETTLEMENT/ADR At the request of Plaintiff and by agreement of Defendant, the parties participated in a settlement conference on September 12, 2006, where, in part, the parties discussed the viability of alternative dispute resolution. Defendant communicated that it did not have adequate information, since, at that time, fact discovery was ongoing and expert discovery had not been

The Court ruled that "the piezometers shall remain in place throughout the summer of 2007," Arkansas Game & Fish Commission v. United States, 74 Fed. Cl. 426, 434 (2006), and "that expert work and discovery would not begin until after the data from the piezometers was in hand," id. at 433-34. Once the data from the piezometers has been retrieved, Defendant will promptly provide the data to Plaintiff. Id. at 434. 2 During fact discovery, the parties agreed to exchange their respective expert witnesses' names, which occurred on September 6, 2006. At that time, both parties indicated that additional experts may be retained after the initial exchange. Thus, Defendant proposes that the names of Plaintiff's expert witnesses be exchanged on October 12, 2007. 3 During fact discovery, the parties agreed to exchange their respective expert witnesses' names, which occurred on September 6, 2006. At that time, both parties indicated that additional experts may be retained after the initial exchange. Thus, Defendant proposes that the names of Defendant's expert witnesses be exchanged on November 16, 2007. 4

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scheduled, to evaluate the potential for settlement. No other settlement discussions have taken place. This motion was jointly prepared by counsel for the parties. Counsel for Defendant has authorized the undersigned to file this Joint Status Report on behalf of both parties. DATED: June 12, 2007 By: /s/ Julie D. Greathouse, by James F. Goodhart PERKINS & TROTTER, PLLC P. O. Box 251618 Little Rock, AR 72225-1618 Telephone: (501) 603-9000 Telefax: (501) 603-0556 [email protected]

Of Counsel G. Alan Perkins PERKINS & TROTTER, PLLC Post Office Box 251618 Little Rock, AR 72225-1618 Telephone: (501) 603-9000 Telefax: (501) 603-0556 [email protected] James F. Goodhart ARKANSAS GAME & FISH COMMISSION #2 Natural Resources Drive Little Rock, AR 72205 Telephone: (501) 223-6327 Telefax: (501) 223-6463 [email protected] ATTORNEYS FOR PLAINTIFF ARKANSAS GAME & FISH COMMISSION

RONALD J. TENPAS Acting Assistant Attorney General United States Department of Justice Environment and Natural Resources Division By: /s/ HelenAnne Listerman HelenAnne Listerman Natural Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0239 (phone) [email protected] 5

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Of Counsel Jennifer Dalton United States Corps of Engineers Little Rock District Office of Counsel 700 West Capitol Little Rock, Arkansas 72201 (501) 324-6180 (phone) [email protected] ATTORNEYS FOR DEFENDANT UNITED STATES OF AMERICA

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