Free Case Management Statement - District Court of California - California

Case 5:08-cv-01592-RMW

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Filed 09/04/2008

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James L. Buchal [OSB: 92161] MURPHY & BUCHAL LLP 2000 S.W. First Avenue, Suite 420 Portland, OR 97201 [email protected] Telephone: 503-227-1011 Facsimile: 503-227-1034 Attorney Pro Hac Vice for Plaintiff Homer T. McCrary

UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 10 11 12 v. 13 CARLOS M. GUTIERREZ, et al., 14 Defendants. 15 16 Telephonic Appearances 17 18 19 20 21 22 23 24 25 26 27 28 1. The parties to the above-entitled action jointly submit this Case Management Statement. DESCRIPTION OF THE CASE Jurisdiction and Service: Subject matter jurisdiction pursuant to 16 U.S.C. § 1540, Date: September 12, 2008 Time: 9:00 a.m. Judge: Hon. Ronald M. Whyte Courtroom 6, 4th Floor HOMER T. MCCRARY, Plaintiff, JOINT CASE MANAGEMENT STATEMENT Case No. CV 08-01592-RMW

28 U.S.C. § 1331. No other issues here. 2. Facts: On or about November 6, 2003, plaintiff transmitted to defendant National

Marine Fisheries Service ("NMFS") a petition requesting that the agency redefine the southern boundary of the California Central Coast coho salmon evolutionarily-significant unit established pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., to exclude coho salmon south of San Francisco Bay. Plaintiff filed an initial complaint in the Eastern District of California on January 12, 2006 alleging that NMFS had failed to timely issue a finding on his petition, and Page 1 JOINT CASE MANAGEMENT STATEMENT
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shortly thereafter NMFS issued its finding on March 17, 2006 that the petitioned action failed to present substantial information indicating that the petitioned action may be warranted. After the case was transferred to the Northern District of California, Plaintiff amended his complaint to challenge NMFS' finding on the merits and moved for summary judgment. Plaintiff's case was dismissed for want of subject matter jurisdiction (failure to give sixty-day notice prior to filing suit). This action followed. Plaintiff's claims in this case should be reviewed as a matter of law on the administrative record pursuant to the standard of review provided by the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. The parties do not anticipate that an evidentiary hearing will be appropriate or required in this case as it is not subject to de novo fact finding. The parties anticipate that this case will be resolved on cross-motions for summary judgment. 3. Legal issues: Whether defendants' petition finding satisfies the APA's standard of

review, found at 5 U.S.C. § 706. Defendants contend that their petition finding was rational, supported by the administrative record, and therefore should be upheld; plaintiff contends the petition finding was arbitrary, capricious, contrary to law, and not supported by the administrative record. 4. Motions: The parties agree that the only pertinent issues for case management are:

(1) plaintiffs' pending Motion To Proceed On Existing Administrative Record And Briefs from McCrary v. Guitierrez, No. C 06-04174JW (N.D. Cal. filed Jan. 12, 2006); and (2) the parties' joint request to transfer the existing paper administrative record from that case to this case. Defendants have filed an answer to plaintiff's complaint in this case and a certified administrative record that is identical to the administrative record filed in the previous litigation. The parties agree that the filing of the administrative record has mooted a portion of plaintiff's motion. The sole remaining task for the Court with respect to plaintiff's motion, therefore, is to decide whether or to what extent to allow new summary judgment papers, and to set a schedule for such filings. Defendants seek the opportunity to submit new briefs pursuant to the following expedited briefing schedule, which takes into account the fact that counsel for defendants will be on personal leave from September 15-29 for his wedding and honeymoon: Page 2 JOINT CASE MANAGEMENT STATEMENT
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Plaintiff's motion for summary judgment: September 29th; Defendant's cross-motion and response: October 17th; Plaintiff's opposition/reply: October 31st; and Defendant's reply: November 7th. The parties agree that, if plaintiff's motion is denied, this is an appropriate schedule. 5. 6. Amendment of pleadings: None. Evidence preservation: As stated previously, this is an APA record-review case, to

be decided upon the certified administrative record filed by defendants. 7. 8. 9. 10. Disclosures: Not applicable. Discovery: Not applicable. Class actions: Not applicable. Related cases: None inasmuch as the Court has determined that this case is not

related to McCrary v. Guitierrez, No. C 06-04174JW (N.D. Cal. filed Jan. 12, 2006), within the meaning of Civ. L.R. 3-12. See 8/7/08 Order. 11. Relief: Plaintiff contends that defendant should be required to accept his Petition

and proceed to a review of the status of coho salmon in this area. Defendants deny that plaintiff is entitled to any relief. 12. Settlement and ADR: The parties have filed ADR certifications pursuant to ADR

L.R. 3-5 and share the view that no ADR procedure should be used in this case and that, given the nature of this action, settlement is unlikely. 13. 14. 15. 16. Consent to Magistrate Judge: None. Other references: Not applicable. Narrowing of issues: Not applicable. Expedited schedule: As discussed above in ¶ 4, plaintiff's pending motion seeks to

proceed in this litigation based on the briefs filed in the previous litigation. Defendants oppose plaintiff's motion and seek to file new briefs according to an expedited schedule set forth in ¶ 4. 17. Scheduling: See ¶¶ 4, 16.

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18.

Trial: Not applicable. The parties believe that the case will be resolved on cross-

motions for summary judgment. 19. public interest. Dated: September 4, 2008. /s/ James L. Buchal James L. Buchal OSB #92161 Attorney for Plaintiff, Pro Hac Vice Disclosure of Non-Party Interested Entities or Persons: None beyond general

Dated: September 4, 2008. /s/ Robert P. Williams Robert P. Williams SBN 474730 (DC) Attorney for Defendants

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