Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-05109-PJH

Document 19

Filed 04/10/2008

Page 1 of 6

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

Miyoko Sakashita CENTER FOR BIOLOGICAL DIVERSITY 1095 Market Street, Suite 511 San Francisco, CA 94103 Phone: (415) 436-9682 Facsimile: (415) 436-9683 Email: [email protected] Attorney for Plaintiffs RONALD J. TENPAS, Assistant Attorney General JEAN E. WILLIAMS, Section Chief LAWSON E. FITE, Trial Attorney (Oregon Bar No. 05557) U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7369 Washington, DC 20044-7369 Phone: (202) 305-0217 Fax: (202) 305-0275 Email: [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) CENTER FOR BIOLOGICAL DIVERSITY ) and TURTLE ISLAND RESTORATION ) NETWORK, ) ) Plaintiffs, ) ) v. ) ) DIRK KEMPTHORNE, Secretary of the ) United States Department of the Interior, and ) the UNITED STATES FISH AND ) WILDLIFE SERVICE, ) ) Defendants. )

No. C 07-5109 PJH JOINT CASE MANAGEMENT STATEMENT AND PROPOSED ORDER

Case 3:07-cv-05109-PJH

Document 19

Filed 04/10/2008

Page 2 of 6

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 2.

JOINT CASE MANAGEMENT STATEMENT Pursuant to Civil L.R. 16-9, the parties to the above-entitled action jointly submit this Case Management Statement and Proposed Order and request the Court to adopt it as its Case Management Order in this case. 1. Jurisdiction and Service The parties agree that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Federal Defendants reserve the right to challenge the Plaintiffs' standing to bring this action, and to dispute venue in this district for any Plaintiff that may have standing to bring this action. All parties have been served. Facts Plaintiffs bring this action to compel issuance of revised marine mammal stock assessment reports pursuant to section 117 of the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1386. Plaintiffs allege that the Federal Defendants, Dirk Kempthorne and the United States Fish and Wildlife Service (collectively "Service") are in violation of the deadlines to review, and if necessary, to revise assessment reports annually for strategic stocks and for stocks for which there is significant new information, and at least every three years for all other stocks, as provided in the MMPA. Federal Defendants acknowledge that final stock assessment reports were last prepared in 2002 for the polar bear, Pacific walrus and three stocks of northern sea otter in Alaska, and in 1995 for the other marine mammals under the Service's jurisdiction. Federal Defendants maintain that the Service has not unreasonably delayed reviewing and revising the stock assessment reports. Moreover, the Service is presently engaged in reviewing and revising the stock assessment reports for the marine mammals under its jurisdiction. 73 Fed. Reg. 6,994 (Feb. 6, 2008) (notice of availability of draft stock assessment reports for southwest Alaska, southcentral Alaska, and southeast Alaska stocks of the northern sea otter). No factual issues are in dispute. 3. Legal Issues The parties dispute whether the circumstances of this case constitute "agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). 2

Case 3:07-cv-05109-PJH

Document 19

Filed 04/10/2008

Page 3 of 6

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

4.

Motions Federal Defendants anticipate they may bring a motion to dismiss and/or transfer on the basis

that Plaintiffs lack standing and on the basis of improper venue. If this motion is brought, Federal Defendants anticipate bringing it within 60 days of the Initial Case Management Conference. The parties anticipate that this case will be resolved on cross-motions for summary judgment. No other motions are anticipated. 5. Amendment of Pleadings No amendment of pleadings is anticipated. 6. Evidence Preservation The Service intends to prepare an administrative record for this case. However, the parties dispute whether this case is an administrative record case. Plaintiffs believe this is a case of agency action unlawfully withheld or unreasonably delayed and therefore no administrative record exists. Defendants contend that this is an administrative record case because allegations of agency failure to act are reviewed on the administrative record. 7. Disclosures The parties dispute whether this action is exempt from initial disclosures pursuant to Fed. R. Civ. P. 26(e); nevertheless the parties agree that no initial disclosures are necessary. 8. Discovery While the parties do not anticipate discovery, there is a dispute about whether this is an administrative record case. Plaintiffs believe this is a case of agency action unlawfully withheld or unreasonably delayed and therefore no admin record exists; however, Defendants contend that this is an administrative record case. Nevertheless, the parties will work to resolve this issue. Plaintiffs reserve the right to seek to supplement any record prepared by the agency. Defendants reserve the right to object to any such supplementation or to any discovery. 9. Class Actions Not applicable. //

Joint Case Management Statement and Proposed Order No. C 07-5109 PJH

3

Case 3:07-cv-05109-PJH

Document 19

Filed 04/10/2008

Page 4 of 6

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

10.

Related Cases There are no related cases.

11.

Relief Plaintiffs seek a declaratory judgment that the Service is in violation of the MMPA and the

APA and injunctive relief compelling issuance of marine mammal stock assessment reports. No counterclaims are presented. 12. Settlement and ADR The parties have had productive settlement discussions and believe that they have reached tentative agreement at the staff level on settlement of this matter. Because final settlement authority is vested in supervisory officials at the Departments of Justice and the Interior, further review is necessary before Federal Defendants may enter into any proposed settlement. The parties do not believe that ADR would be helpful to resolution of this case. 13. Consent to Magistrate Judge Federal Defendants do not consent to a magistrate judge for all purposes. 14. Other References The parties do not believe this case is suitable for other references. 15. Narrowing of Issues The parties believe this case is best resolved on cross-motions for summary judgment. 16. Expedited Schedule The parties do not believe an expedited schedule is appropriate. 17. Scheduling In light of the productive nature of settlement discussions to date, the parties propose that, if a final settlement is not reached, they file a status report with the Court within 30 days of the Initial Case Management Conference proposing a schedule for further proceedings. 18. Trial The parties do not anticipate need for trial. //

Joint Case Management Statement and Proposed Order No. C 07-5109 PJH

4

Case 3:07-cv-05109-PJH

Document 19

Filed 04/10/2008

Page 5 of 6

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

19.

Other Interested Parties There are no non-party interested entities or persons.

20.

Other Matters None.

Dated: April 10, 2008

Respectfully Submitted,

/s/ Miyoko Sakashita Miyoko Sakashita CENTER FOR BIOLOGICAL DIVERSITY 1095 Market Street, Suite 511 San Francisco, CA 94103 Phone: (415) 436-9682 Facsimile: (415) 436-9683 Email: [email protected] Attorney for Plaintiffs

RONALD J. TENPAS, Assistant Attorney General JEAN E. WILLIAMS, Section Chief /s/ Lawson E. Fite LAWSON E. FITE, Trial Attorney (Oregon Bar No. 05557) U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7369 Washington, DC 20044-7369 Phone: (202) 305-0217 Fax: (202) 305-0275 Email: [email protected] Attorneys for Defendants PURSUANT TO STIPULATION, IT IS SO ORDERED.

_______________________________ UNITED STATES DISTRICT JUDGE

Joint Case Management Statement and Proposed Order No. C 07-5109 PJH

5

Case 3:07-cv-05109-PJH

Document 19

Filed 04/10/2008

Page 6 of 6

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 record. v.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) )

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, DIRK KEMPTHORNE, et al., Defendants.

No. C 07-05109 PJH CERTIFICATE OF SERVICE

I hereby certify that on April 10, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such to the attorneys of

/s/ Lawson E. Fite LAWSON E. FITE

Case No. C 07-5109 PJH Certificate of Service

6