Free Request for Judicial Notice - District Court of California - California

Case 3:07-cv-04936-CRB

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Filed 03/07/2008

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BRIAN C. BUNGER, ESQ. (SB#142001) District Counsel ALEXANDER G. CROCKETT, ESQ. (SB#193910) Assistant Counsel BAY AREA AIR QUALITY MANAGEMENT DISTRICT 939 Ellis Street San Francisco, CA 94109 Telephone: (415) 749-4920 Facsimile: (415) 749-5103 Email: [email protected] Counsel for DEFENDANT THE BAY AREA AIR QUALITY MANAGEMENT DISTRICT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION SAN FRANCISCO CHAPTER OF THE A. PHILIP RANDOLPH INSTITUTE, et al., Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. C-07-4936 CRB REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SANCTIONS Date: Time: Place: Judge: April 11, 2008 10:00 a.m. Courtroom 8, 19th Floor Hon. Charles R. Breyer

14 vs. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Pursuant to Rule 201 of the Federal Rules of Civil Procedures, DEFENDANT the BAY AREA AIR QUALITY MANAGEMENT DISTRICT ("Air District") hereby submits this REQUEST FOR JUDICIAL NOTICE in support of its Motion for Sanctions being filed concurrently herewith. BASIS FOR JUDICIAL NOTICE Rule 201 of the Federal Rules of Evidence provides that a Court may take judicial notice of matters that are not subject to reasonable dispute because they are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Judicial notice is mandatory where a party requests it and provides the Court with information showing that the matters satisfy the requirements of Rule 201. Id. § 201(d). The Court should take judicial notice of the documents attached hereto as Exhibits 1 through 6
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Case No. C-07-4936 CRB REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SANCTIONS

Case 3:07-cv-04936-CRB

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because they are public documents on file and publicly available in the dockets of various public agencies and the California Supreme Court. As such, they are capable of accurate and ready determination by resorting to the public dockets in which they are on file, which are maintained by public agencies and whose accuracy cannot reasonably be questions. The Court should take judicial notice of the documents attached hereto as Exhibits 7 through 10 because they are the published regulations of the Air District freely available to the public through a number of means including at the Air District's headquarters and on the Air District's website. As such, they are capable of accurate and ready determination by looking them up in any of the places in which they are published, and may be judicially noticed. Publicly available filings and regulatory requirements are judicially noticeable under Rule 201. See, e.g., Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006). Each document, and the specific reasons why it is judicially noticeable under Rule 201, are described in detail in the following paragraphs. Exhibit 1 is the Appeal of the Air District's Final Determination of Compliance for the San Francisco Electric Reliability Project ("Project"), which was filed with the Air District's Hearing board by Plaintiff Californians for Renewable Energy ("CARE"), and verified by Plaintiff Lynne Brown. The Appeal is a public record in the Docket of the Air District's Hearing Board, Docket No. 3511. The Appeal includes a copy of the Air District's Final Determination of Compliance as an attachment. Exhibit 2 is the Air District Hearing Board's Order dismissing the Appeal in Exhibit 1, filed April 20, 2006. The Order is a public record in the Docket of the Air District's Hearing Board, Docket No. 3511. The Order is also publicly available electronically on the Air District's website at http://www.baaqmd.gov/brd/hearingboard/final_orders/3511dis.pdf. Exhibit 3 is the Final Commission Decision of the California Energy Commission certifying the Project, Dated October 3, 2006. The Decision is a public record in the Docket of the Energy Commission, Docket No. 04-AFC-1. The Decision is also publicly available electronically on the Energy Commission's website at http://www.energy.ca.gov/2006publications/CEC-800-2006-007/CEC800-2006-007-CMF.PDF. For reasons of economy, only the most relevant portions of the document are being submitted to the Court in Exhibit 3, including the Commission's Adoption Order, the table of
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Case No. C-07-4936 CRB REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SANCTIONS

Case 3:07-cv-04936-CRB

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Filed 03/07/2008

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contents of the full document, and the Air Quality Analysis and Air Quality conditions of certification. The Air District will submit a full copy of the entire document upon request, and the document may also be electronically accessed in its entirety on the Commission's website. Exhibit 4 is the Verified Petition For Writ Of Mandate On Review Of The Decision Of The California Energy Commission And Supporting Memorandum of Points And Authorities ("Petition For Review") filed in the California Supreme Court on January 18, 2007. The Petition For Review was filed by Martin Homec, Esq., an attorney for Plaintiffs in this case, and was filed by him on behalf of Plaintiff CARE and Robert Sarvey. The Petition For Review is a public record in the Docket of the California Supreme Court, Docket No. S149527. Exhibit 5 is the California Supreme Court's Order denying the Petition For Review, filed February 28, 2007. The Order is a public record in the Docket of the California Supreme Court, Docket No. S149527. Exhibit 6 is a Notice Of Intent To Claim Compensation Of Californians For Renewable Energy, Inc. (CARE) filed with the California Public Utilities Commission on January 28, 2008. The Order is a public record in the Docket of the California Public Utilities Commission, Docket No. 07-11-008. Exhibits 7 through 10 are four Air District regulations that apply to power plant permitting, Air District Regulations 2-1 (General Permit Requirements), 2-2 (New Source Review), 2-3 (Power Plants), and 2-6 (Major Facility Review), respectively. These regulations are regulations of a California public agency, and are published in a number of forms including in binders that are publicly available for review at Air District headquarters and on the Air District's website at http://www.baaqmd.gov/dst/regulations/index.htm. CONCLUSION For the foregoing reasons, the Air District respectfully submits that the Court should take judicial notice of the documents attached as Exhibits 1 through 10 hereto, and of the matters set forth therein. /// /// /// ///
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Case No. C-07-4936 CRB REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SANCTIONS

Case 3:07-cv-04936-CRB

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Filed 03/07/2008

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Dated: February 15, 2008

Respectfully submitted, BRIAN C. BUNGER, ESQ. DISTRICT COUNSEL BAY AREA AIR QUALITY MANAGEMENT DISTRICT By:__________________________________________ Alexander G. Crockett, Esq. Assistant Counsel COUNSEL FOR DEFENDANT THE BAY AREA AIR QUALITY MANAGEMENT DISTRICT

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Case No. C-07-4936 CRB REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SANCTIONS