Free Stipulation - District Court of California - California

Case 5:08-cv-01592-RMW

Document 30

Filed 08/20/2008

Page 1 of 3

1 2 3 4 5 6 7 8 9

RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division JEAN E. WILLIAMS, Chief LISA L. RUSSELL, Assistant Chief ROBERT P. WILLIAMS, Trial Attorney (SBN 474730 (DC)) U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Telephone: (202) 305-0206 Facsimile: (202) 305-0275 Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT

10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 15 16 17 18 19 20 Pursuant to Civil Local Rules 7-11 and 7-12, Federal Defendants Carlos Gutierrez, 21 United States Secretary of Commerce, the National Marine Fisheries Service ("NMFS"), and 22 Russ M. Strach, NMFS Assistant Regional Administrator of the Protected Resources Division of 23 the Southwest Region (collectively referred to as "NMFS"), joined by Plaintiff Homer McCrary, 24 respectfully request that the Court transfer the paper copy of the administrative record and the 25 supplement to the administrative record from the case file for McCrary v. Gutierrez, No. C 0626 04174-JW (N.D. Cal. 2007) ("McCrary I") to the instant case. As grounds for the instant 27 request, the parties agree and stipulate as follows: 28 1. The McCrary I case involved the same parties and legal issues as the instant case.
McCrary v. Gutierrez et al., Case No. 08-cv-1592-RMW Stipulation to Transfer Administrative Record

) ) ) Plaintiff, ) ) v. ) ) CARLOS M. GUTIERREZ, ET AL., ) ) Defendants. ) ) _______________________________________) HOMER T. MCCRARY,

Case No. 08-cv-1592-RMW STIPULATION TO TRANSFER ADMINISTRATIVE RECORD AND SUPPLEMENT TO ADMINISTRATIVE RECORD Date: September 12, 2008 Time: 9:00 a.m. & 10:30 a.m. Judge: Hon. Ronald M. Whyte Courtroom 6, 4th Floor

Case 5:08-cv-01592-RMW

Document 30

Filed 08/20/2008

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The case was dismissed without prejudice in December 2007 for lack of jurisdiction due to a lack of 60-days written notice of Plaintiff's intent to sue, 16 U.S.C. § 1540(g)(2)(C). See McCrary v. Gutierrez, 528 F. Supp. 2d 995 (N.D. Cal. 2007). Plaintiff filed the instant lawsuit in March 2008 after providing written notice of his intent to sue. 2. In McCrary I, NMFS had filed a certified administrative record, in both electronic

form (i.e., on CD-Rom) and in paper form (consisting of three binders of documents), on or about November 27, 2006. See Dckt. Nos. 22-24. NMFS subsequently filed a supplement to the administrative record on February 22, 2007, in both electronic and paper form. See Dckt. Nos. 25-26. 3. On July 2, 2008, Plaintiff filed motion in the instant case to proceed on the

administrative record and briefs from McCrary I (Dckt. No. 11). 4. NMFS filed an opposition to Plaintiff's motion on July 30, 2008, in which NMFS

proposed an expedited litigation schedule for filing its answer, the administrative record, and new cross-motions for summary judgment. See Dckt. No. 20. In particular, NMFS proposed filing its administrative record in this case by August 15, 2008. 5. As it indicated it would do, on August 15, 2008, NMFS filed the administrative

record in the above-captioned case. This administrative record is identical to the administrative record filed in McCrary I, save for the new case number and caption information. The administrative record in the instant case was filed in CD-Rom form only. 6. Given that the administrative records in McCrary I and the instant case are

identical, the parties agree that transferring the paper copy of the administrative record and the supplement to the administrative record from McCrary I to the instant case is in the interest of justice, as it would conserve government resources by preventing NMFS from having to compile a new paper copy of the administrative record for filing in the instant case. 7. Although NMFS stipulates to the transfer the paper copy of the administrative

record and the supplement to the administrative record from McCrary I to the instant case, NMFS continues to oppose transferring the summary judgment briefs from McCrary I to the instant case, and instead would prefer to file updated summary judgment briefs. See Dckt. No.
McCrary v. Gutierrez et al., Case No. 08-cv-1592-RMW Stipulation to Transfer Administrative Record

2

Case 5:08-cv-01592-RMW

Document 30

Filed 08/20/2008

Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12

20. 8. Wherefore, for the reasons set forth above, the parties hereby agree and stipulate

to the transfer of the paper copy of the original administrative record from McCrary v. Gutierrez, No. C 06-04174-JW (N.D. Cal. 2007) (Dckt. Nos. 22-24), plus the paper copy of the supplement to the administrative record (Dckt. Nos. 25-26) to the above-captioned case. Respectfully submitted: August 19, 2008 /s/ Robert P. Williams ROBERT P. WILLIAMS, Trial Attorney (SBN 474730 (DC)) U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Telephone: (202) 305-0206 Facsimile: (202) 305-0275 Attorneys for Federal Defendants

13 14 15 16 17 18 Attorney Pro Hac Vice for Plaintiff 19 20 21 22 23 24 25 26 27 28 Dated: August __, 2008 _________________________ RONALD M. WHYTE U.S. District Judge
McCrary v. Gutierrez et al., Case No. 08-cv-1592-RMW Stipulation to Transfer Administrative Record

/s/ James L. Buchal James L. Buchal OSB #92161 MURPHY & BUCHAL LLP 2000 S.W. First Avenue, Suite 420 Portland, OR 97201 Tel: 503-227-1011 Fax: 503-227-1034

PURSUANT TO STIPULATION, IT IS SO ORDERED. The Clerk shall transfer the paper copy of the original administrative record from McCrary v. Gutierrez, No. C 06-04174-JW (N.D. Cal. 2007) (Dckt. Nos. 22-24), plus the paper copy of the supplement to the administrative record (Dckt. Nos. 25-26) to the above-captioned case.

3