Free Response ( Non Motion ) - District Court of California - California

Case 3:07-cv-04771-EDL

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RONALD J. TENPAS Acting Assistant Attorney General Environment and Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE JEAN E. WILLIAMS, Chief KRISTEN L. GUSTAFSON, Senior Trial Attorney Wildlife and Marine Resources Section GUILLERMO A. MONTERO, Trial Attorney Natural Resources Section Environment & Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE Benjamin Franklin Station - P.O. Box 7369/ P.O. Box 663 Washington, D.C. 20044 (202) 305-0211 (tel.) / (202) 305-0443 (tel.) (202) 305-0275 (fax)/ (202) 305-0274 (fax) [email protected] [email protected] Counsel for Federal Defendants

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DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTION RE: DEMONSTRATIVE EXHIBIT INTRODUCED DURING PRELIM. INJ. HEARING Case No. 07-4771-EDL

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

) ) ) Plaintiffs, ) ) v. ) ) CARLOS GUTIERREZ, SECRETARY ) OF THE UNITED STATES ) DEPARTMENT OF COMMERCE, et al. ) ) Defendants. ) ) ____________________________________)

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Civ. Action No. 07-4771-EDL DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTION RE: DEMONSTRATIVE EXHIBIT INTRODUCED DURING PRELIMINARY INJUNCTION HEARING

Case 3:07-cv-04771-EDL

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DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTION RE: DEMONSTRATIVE EXHIBIT INTRODUCED DURING PRELIM. INJ. HEARING Case No. 07-4771-EDL

Federal Defendants, by and through their undersigned counsel, hereby submit this response to the Plaintiffs' objection to evidence, which has been styled "Plaintiffs' Response to Defendants' Demonstrative Exhibit Introduced During Preliminary Injunction Hearing" (Dkt. #85) (hereinafter "objection"). ARGUMENT Plaintiffs' objection to the Demonstrative Exhibit ("Exhibit") submitted during the January 16, 2008 preliminary injunction hearing has no merit, and provides no support for the Plaintiffs' request that the Exhibit be disregarded. First, the objection asserts that the Exhibit "distorts the factual record and the parties' arguments." Objection at 1:14-15. This is incorrect. Even a cursory review reveals that the Exhibit does not provide any characterization whatsoever of the Plaintiffs' assertions of injury or the Defendants' responsive evidence. Rather, the left column of the Exhibit quotes each of the assertions of injury made in the Plaintiffs' briefs, while the right column provides citations to the Defendants' declarations and/or exhibits that rebut each of the Plaintiffs' assertions. Significantly, the right column does not paraphrase or otherwise interpret the referenced evidence, but instead leaves it to the Court to examine those declarations and exhibits and draw its own conclusions. Second, the objection asserts that the Exhibit is improper because it omits the underlying factual support cited in the Plaintiffs papers, thereby "prevent[ing] fair consideration of the relevant merit of the parties' contentions." Objection at 1:16-17 and 2:1-2. This argument is also incorrect. The left column of the Exhibit not only quotes the Plaintiffs' assertions of harm, but also provides citations (by page and line number) to each of the briefs from which those assertions are quoted. Once again, the Exhibit leaves it to the Court to examine the Plaintiffs' briefs as well as any evidentiary support that the Plaintiffs may have cited therein. Contrary to the Plaintiffs' assertions, the Exhibit not only allows, but streamlines the Court's consideration of the relevant merit of the parties' contentions.

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Last, Plaintiffs argue that the Exhibit is improper because the Defendants were required to provide citations to each item of responsive evidence in their Opposition brief. Objection at 2:3-9. This argument is unpersuasive. The Defendants' introduction of an Exhibit that merely identifies evidence to rebut the Plaintiffs' assertions of injury was appropriate. That we opted to submit the Exhibit in paper form rather than have counsel recite its contents from the lectern should make no difference. Moreover, it is undisputed that all of the materials referenced in the Exhibit were filed with the Defendants' Opposition brief. The Exhibit itself provides no additional evidence, but rather serves only as a reference tool for navigating the material that had previously been placed before the Court. At bottom, the Exhibit merely provides a "roadmap" that this Court may use to streamline its identification and consideration of the parties' various and voluminous declarations and exhibits. It does not mischaracterize the Plaintiffs' assertions, nor does it prevent fair consideration of the Plaintiffs' evidence. CONCLUSION For the foregoing reasons, the Plaintiffs' objection to the Defendants' Demonstrative Exhibit has no merit. Defendants' respectfully submit that the Court should utilize the Exhibit to facilitate the identification and examination of evidence responsive to the Plaintiffs' assertions of injury.

Dated: January 25, 2008

RONALD J. TENPAS Acting Assistant Attorney General United States Department of Justice Environment & Natural Resources Division JEAN E. WILLIAMS, Chief KRISTEN GUSTAFSON, Trial Attorney United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section By: /s/ Guillermo A. Montero GUILLERMO MONTERO, Trial Attorney MA Bar #660903 United States Department of Justice Environment & Natural Resources Division

DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTION RE: DEMONSTRATIVE EXHIBIT INTRODUCED DURING PRELIM. INJ. HEARING Case No. 07-4771-EDL

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Natural Resources Section Ben Franklin Station, P.O. Box 663 Washington, D.C. 20044-663 Tel. (202) 305-0443/ Fax (202) 305-0274 [email protected] Counsel for Federal Defendants

DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTION RE: DEMONSTRATIVE EXHIBIT INTRODUCED DURING PRELIM. INJ. HEARING Case No. 07-4771-EDL

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DEFENDANTS' RESPONSE TO PLAINTIFFS' OBJECTION RE: DEMONSTRATIVE EXHIBIT INTRODUCED DURING PRELIM. INJ. HEARING Case No. 07-4771-EDL

CERTIFICATE OF SERVICE

I hereby certify that on January 25, 2008, I filed the foregoing document using the Electronic Case Filing System, which will cause electronic notices of filing and service copies to be served upon counsel of record for the parties.

/s/ Guillermo A. Montero Guillermo A. Montero

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