Case Information
*1 COUNSEL IDENTIFICATION AT END
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Case No: 1:09-CV-00407 OWW GSA THE DELTA SMELT CASES Partially consolidated with: 1:09-cv-00480 OWW GSA SAN LUIS & DELTA-MENDOTA WATER AUTHORITY et al v. SALAZAR et al.
ORDER RE MOTION TO SUPPLEMENT (Case No. 1:09-cv-407) ADMINISTRATIVE RECORD STATE WATER CONTRACTORS v. SALAZAR Date: October 19, 2009 et al. Time: 11:00 a.m.
Courtroom: 3 (Case No. 1:09-cv-422) Hon. Oliver W. Wanger COALITION FOR A SUSTAINABLE DELTA et al. v. UNITED STATES FISH AND WILDLIFE SERVICE et al. (Case No. 1:09-cv-480) METROPOLITAN WATER DISTRICT v. UNITED STATES FISH AND WILDLIFE SERVICE et al. (Case No. 1:09-cv-631) STEWART & JASPER ORCHARDS et al. v. UNITED STATES FISH AND WILDLIFE SERVICE et al. (Case No. 1:09-cv-892) [Proposed] Order Re Motion to Supplement Administrative Record
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On October 19, 2009, the Court heard Plaintiffs’ Motion to Supplement Administrative Record (Docket # 170). The Court has fully considered the briefs, evidence, and oral arguments submitted by the parties, and, good cause appearing therefore, THE COURT HEREBY ORDERS: Plaintiffs’ motion is GRANTED in part and DENIED in part as follows:
1. Plaintiffs’ motion is GRANTED with respect to documents 7-8, 42-46, 87, 89-102, 105, 120, 126, 135, 147-148, 192, 229, 244, 249, which the federal defendants have agreed will be added to the administrative record.
2. Plaintiffs’ motion is GRANTED with respect to documents 103, 117, 128-132 and those documents are admitted as part of the administrative record. 3. Plaintiffs’ motion is DENIED in part and GRANTED in part with respect to documents 149-177, 179-191, 193-214. The documents are not admitted as part of the record, but the Court may consider these documents under the relevant factors exception.
4. Plaintiffs’ motion is DENIED as to documents 104, 106, 109, 119. The Court may take judicial notice of these documents, if needed. 5. Plaintiffs’ motion is DENIED without prejudice with respect to documents 1-3, 9-12, 15, 17, 19, 69-71, 73, 75, 78-79, 81, 85, 88, 114-115, 121-125, 127, 133-134. 6. Plaintiffs’ motion is DENIED with respect to documents 5-6, 14, 222, 266-268, which are post-decisional documents. 7. Plaintiffs’ motion is GRANTED with respect to document 265 with the understanding that this is a post-decisional document, and the Court may consider this document under the exception to explain complex scientific and technical materials.
8. Plaintiffs may submit supplemental briefing presenting the foundation for documents 215-221, 223-228, 230-243, 245-248, 250-264 to be considered under the relevant factors exception. This briefing will be submitted by November 6, 2009. Responses, if any, will be submitted by November 20, 2009.
9. The parties have agreed that documents 4, 13, 16, 20-21, 36, 52-53, 67-68, 72, 74, 76-77, 86, 107-108, 110-113, 116, and 118 are already included in the administrative record. *3 10. The federal defendants have indicated that documents 18 and 84 are missing, and therefore they are unable to add them to the administrative record. 11. Federal defendants are hereby ORDERED to produce documents 22-35, 37-41, 47-51, 54-66, 80, 82-83 to the Plaintiffs by October 26, 2009 for Plaintiffs to review, to the extent they are in the federal defendants’ possession. Federal defendants will make an affirmative assertion as to any documents they do not have within their possession. Plaintiffs will then have an opportunity to submit supplemental briefing regarding whether these documents should be considered under the relevant factors exception.
12. The Court will conduct further review of documents 79a, 136-146 to determine whether these documents should be admitted as part of the administrative record. The table below summarizes the Court’s ruling. Document # Court’s Ruling 1-3 Denied. 4 Already included in administrative record.
5-6 Post-decisional – parties agree not to be added. 7-8 Federal defendants agree to add the documents to the record. 9-12 Denied. 13 Already included in administrative record. 14 Post-decisional – parties agree not to be added. 15 Denied. 16 Already included in administrative record. 17 Denied. 18 Missing. 19 Denied.
20-21 Already included in administrative record. 22-35 Federal defendants to produce documents to Plaintiffs for review by 10/26/09. 36 Already included in administrative record. 37-41 Federal defendants to produce documents to Plaintiffs for review by 10/26/09. *4 42-46 Federal defendants agree to add the documents to the record. 47-51 Federal defendants to produce documents to Plaintiffs for review by 10/26/09. 52-53 Already included in administrative record. 54-66 Federal defendants to produce documents to Plaintiffs for review by 10/26/09. 67-68 Already included in administrative record. 69-71 Denied. 72 Already included in administrative record. 73 Denied 74 Already included in administrative record. 75 Denied. 76-77 Already included in administrative record. 78-79 Denied. 79a Court will conduct further review of this document. 80 Federal defendants to produce documents to Plaintiffs for review by 10/26/09. 81 Denied. 82-83 Federal defendants to produce documents to Plaintiffs for review by 10/26/09. 84 Missing. 85 Denied. 86 Already included in administrative record. 87 Federal defendants agree to add the documents to the record. 88 Denied. 89-102 Federal defendants agree to add the documents to the record. 103 Admitted. 104 Court may take judicial notice, if needed. 105 Federal defendants agree to add the document to the record. 106 Court may take judicial notice, if needed. *5 107-108 Already included in administrative record. 109 Court may take judicial notice, if needed.
110-113 Already included in administrative record. 114-115 Denied. 116 Already included in administrative record. 117 Admitted. 118 Already included in administrative record. 119 Court may take judicial notice, if needed. 120 Federal defendants agree to add the document to the record. 121-125 Denied. 126 Federal defendants agree to add the document to the record. 127 Denied.
128-132 Admitted. 133-134 Denied. 135 Federal defendants agree to add the document to the record. 136-146 Court will conduct further review of these documents. 147-148 Federal defendants agree to add the documents to the record. 149-177 Considered under the exceptions to see if it (1) bear on best available science, (2)
bear on relevant factors, and/or (3) if any of the information in the overall either undermines or impeaches the efficacy of the BiOp. 178 No document. 179-191 Considered under the exceptions to see if it (1) bear on best available science, (2) bear on relevant factors, and/or (3) if any of the information in the overall either undermines or impeaches the efficacy of the BiOp. 192 Federal defendants agree to add the document to the record. 193-214 Considered under the exceptions to see if it (1) bear on best available science, (2) *6 bear on relevant factors, and/or (3) if any of the information in the overall either undermines or impeaches the efficacy of the BiOp. 215-221 Plaintiffs have additional time to supplement the foundation to show the Court it meets the exception.
222 Post-decisional – parties agree not to be added. 223-228 Plaintiffs have additional time to supplement the foundation to show the Court it meets the exception. 229 Federal defendants agree to add the document to the record. 230-243 Plaintiffs have additional time to supplement the foundation to show the Court it meets the exception. 244 Federal defendants agree to add the documents to the record. 245-248 Plaintiffs have additional time to supplement the foundation to show the Court it meets the exception. 249 Federal defendants agree to add the document to the record. 250-264 Plaintiffs have additional time to supplement the foundation to show the Court it meets the exception. 265 Considered under the exception to explain scientific and technically complex material. 266-268 Denied.
IT IS SO ORDERED.
Dated: November 9, 2009 /s/ OLIVER W. WANGER
OLIVER W. WANGER
U.S. District Court Judge
IDENTIFICATION OF COUNSEL
*7 NOSSAMAN LLP DANIEL J. O’HANLON (SBN 122380)
WILLIAM T. CHISUM (SBN 142580)
ROBERT D. THORNTON (SBN 72934) HANSPETER WALTER (SBN 244847) PAUL S. WEILAND (SBN 237058) KRONICK, MOSKOVITZ, TIEDEMANN & AUDREY M. HUANG (SBN 217622) GIRARD 18101 Von Karman Avenue, Suite 1800 400 Capitol Mall, 27th Floor Irvine, CA 92612 Sacramento, CA 95814 Telephone: (949) 833-7800 Telephone: (916) 321-4500 Facsimile: (949) 833-7878 Facsimile: (916) 321-4555 Attorneys for Plaintiffs COALITION FOR A EILEEN M. DIEPENBROCK (SBN 119254) SUSTAINABLE DELTA and KERN JON D. RUBIN (SBN 196944)
JONATHAN R. MARZ (SBN 221188) COUNTY WATER AGENCY DIEPENBROCK HARRISON 400 Capitol Mall, 18th Floor
KERN COUNTY WATER AGENCY
Sacramento, CA 95814
AMELIA T. MINABERRIGARAI
Telephone: (916) 492-5000
(SBN 192359)
Facsimile: (916) 446-4535 P.O. Box 58 Bakersfield, CA 93302-0058
Attorneys for Plaintiffs Telephone: (661) 634-1400 SAN LUIS & DELTA-MENDOTA WATER Facsimile: (661) 634-1428 AUTHORITY and WESTLANDS WATER
DISTRICT
Attorney for Plaintiff KERN COUNTY
WATER AGENCY
CHRISTOPHER J. CARR (SBN 184076) GREGORY K. WILKINSON (SBN 054809)
WILLIAM M. SLOAN (SBN 203583)
STEVEN M. ANDERSON (SBN 186700) MORRISON & FOERSTER, LLP PAETER E. GARCIA (SBN 199580) 425 Market Street MELISSA R. CUSHMAN (SBN 246398) San Francisco, CA 94105 BEST BEST & KRIEGER LLP Telephone: (415) 268-7000 3750 University Avenue, Suite 400
P. O. Box 1028 Attorneys for Plaintiff Riverside, CA 92502 Telephone: (951) 686-1450 THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA Facsimile: (951) 686-3083
Attorneys for Plaintiff