Free Response in Support - District Court of California - California

Case 3:07-cv-05075-CRB

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SCOTT N. SCHOOLS (CSBN 9990) United States Attorney CHARLES O'CONNOR (CSBN 56320) Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, California 94102-3495 Telephone: (415) 436-7241 Facsimile: (415) 436-6748 [email protected] RONALD J. TENPAS Acting Assistant Attorney General Environment & Natural Resources Division BRADFORD T. MCLANE U.S. Department of Justice Law and Policy Section P.O. Box 4390, Ben Franklin Station Washington, DC 20044-4390 Telephone: (202) 305-0544 Facsimile: (202) 514-4231 [email protected] Attorneys for United States

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

NORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation; ROBERT G. EVANS, SHERRY PETERSEN, DOUGLAS RAND EMERY, as individuals, v. Plaintiffs,

No. C-07-05075 MHP FEDERAL DEFENDANTS' RESPONSE IN SUPPORT OF PLAINTIFFS' MOTION TO RELATE CASES

UNITED STATES DEPARTMENT OF THE INTERIOR, UNITED STATES FISH AND WILDLIFE SERVICE, UNITED STATES ARMY CORPS OF ENGINEERS, Defendants.

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Case No. C07-05075 MHP United States' Response to Plaintiffs' Notice of Related Cases

Case 3:07-cv-05075-CRB

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NORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation; ROBERT G. EVANS, SHERRY PETERSEN, DOUGLAS RAND EMERY, as individuals, Plaintiffs

No. C-06-06685 CRB

4 v. 5 6 7 8 9 Plaintiff has submitted a notice of related cases in this action, arguing that pursuant to 10 Civil Local Rule 3-12 and 7-11, the case of Northern California River Watch, et al v. United 11 States Department of the Interior, et al, No. C-07-05075 MHP, filed on October 2, 2007, should 12 be related to the pending case of Northern California River Watch, et al v. California Department 13 of Fish and Game, et al, No. C-06-06685 CRB. Plaintiff has likewise filed a proposed order 14 pursuant to Civil Local Rule 3-12 relating Case No. C-07-05075 MHP to C-06-06685 CRB. 15 Pursuant to Civil Local Rule 3-12(e), the United States Department of Justice files this 16 response on behalf of the United States Department of the Interior, the United States Fish and 17 Wildlife Service, and the United States Army Corps of Engineers ("Federal Defendants") in 18 support of Plaintiffs' Motion and Proposed Order. 19 The Local rules provides that an action is related when: 20 (1) 21 22 23 24 25 26 27 28
Case No. C07-05075 MHP United States' Response to Plaintiffs' Notice of Related Cases

CALIFORNIA DEPARTMENT OF FISH AND GAME, ET AL, Defendants. __________________________________________/ ___________________________

The actions concern substantially the same parties, property, transaction or event; and It appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges.

(2)

Civil L. R. 3-12(a). The Federal Defendants concur with plaintiffs that these criteria are met with respect to these cases, although not for the precise reasons stated by plaintiffs. The first criterion is met because both suits involve substantially the same parties and

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property. Both suits are brought by the same set of plaintiffs. Both suits are also brought under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Most significantly, both suits concern the same property ­ the site of a proposed development referred to as the "Laguna Vista project." Finally, both suits also involve, at least in part, plaintiffs' alleged concern for the Sepastopol meadowfoam (Limnanthes vinculans), which is listed as endangered under the ESA. Plaintiffs allege that populations of the Sebastopol meadowfoam occur at this site and could be or have been harmed by various actions of defendants in both suits. The second criterion is met because Judge Breyer's knowledge of the complex facts and law at issue in C-06-06685 CRB will be of considerable value in deciding the issues in C-0705075 MHP. By presiding over both cases, Judge Breyer will be able to avoid duplication of labor and expense that would be necessary were Judge Patel to preside over the action against Federal Defendants. While these actions are sufficiently related, Federal Defendants note for the record these actions involve different transactions or events. The first case, Case No. C06-06685 CRB, filed against the California Department of Fish and Game and private parties, involves allegations that state and private defendants improperly removed populations of the Sebastopol meadowfoam in violation of section 9(a)(2)(B) of the Endangered Species Act. 16 U.S.C. § 1538(a)(2)(B). The more recent case, Case No. C07-05075 MHP, presents three claims that the Federal Defendants violated various requirements of section 7 of ESA, 16 U.S.C. § 1536, by concluding informal consultation pursuant to 50 C.F.R. § 402.13(a). This informal consultation was associated with a permit application submitted under section 404 of the Clean Water Act, 33 U.S.C. § 1344, seeking authorization to fill less than two acres of jurisdictional wetlands at the Laguna Vista site. While these differences exist, for the reasons outlined above, Federal Defendants believe the cases are related within the meaning of Local Rule 3-12(e). For the foregoing reasons, Federal Defendants request that Case No. C-07-05075 MHP be related to Case No. C-06-06685 CRB pursuant to Civil L. R. 3-12(a).

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Case No. C07-05075 MHP United States' Response to Plaintiffs' Notice of Related Cases

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Case No. C07-05075 MHP United States' Response to Plaintiffs' Notice of Related Cases

Respectfully submitted,

SCOTT N. SCHOOLS United States Attorney CHARLES O'CONNOR Assistant United States Attorney RONALD J. TENPAS Acting Assistant Attorney General Environment & Natural Resources Division /s/ Bradford McLane BRADFORD T. MCLANE, Attorney U.S. Department of Justice Environment & Natural Resources Division

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Case No. C07-05075 MHP United States' Response to Plaintiffs' Notice of Related Cases

CERTIFICATE OF SERVICE I hereby certify that on October 12, 2007, I electronically filed the foregoing with the Clerk of the Court in both of the above-captioned actions using the CM/ECF system, which will send notification of such to the attorneys of record.

/s/ Bradford McLane BRADFORD T. MCLANE

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