Coalition to Protect Puget Sound Habitat et al v. US Army Corps of Engineers et al, No. 2:2021cv01685 - Document 26 (W.D. Wash. 2022)
Court Description: ORDER granting Parties' 24 Joint Motion for a Scheduling Order. Signed by Judge David W. Christel. (SR)
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Coalition to Protect Puget Sound Habitat et al v. US Army Corps of Engineers et al Doc. 26 Case 2:21-cv-01685-JCC-DWC Document 26 Filed 07/11/22 Page 1 of 6 1 The Honorable John C. Coughenour 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 12 13 COALITION TO PROTECT PUGET SOUND ) HABITAT, et al., ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES ARMY CORPS OF ) ENGINEERS, et al., ) ) Defendants. ) Case No. 2:21-cv-1685-JCC ORDER GRANTING JOINT MOTION FOR A SCHEDULING ORDER 14 The matter arises under the Joint Motion filed by Defendants, United States Army Corps 15 of Engineers, et al., and Plaintiffs Coalition to Protect Puget Sound Habitat, et al., to set a 16 schedule regarding the administrative records for judicial review in the above-captioned case. 17 The Joint Motion (ECF No. 24) is GRANTED. The schedule is as follows: 18 CASE MANAGEMENT SCHEDULE 19 20 21 22 23 a. Schedule for the Corps to produce and file the administrative records for Judicial Review in Five Phases: Event Date Phase 1: The Corps will file its certified administrative records for NWP 48 and the Regional Conditions for Seattle District (Re Nationwide Permits) with the Court and provide Plaintiffs with a complete copy of those documents. 24 ORDER GRANTING JOINT MOTION FOR A SCHEDULING ORDER Case No. 2:21-cv-1685-JCC 1 July 8, 2022 -ORIf a motion to dismiss is filed, 60 United States Department of Justice P.O. Box 7611, Washington D.C. 20044 (202) 598-0881 Dockets.Justia.com Case 2:21-cv-01685-JCC-DWC Document 26 Filed 07/11/22 Page 2 of 6 1 days from a ruling on that motion, whichever is later 2 3 Phase 2: The Corps will file its certified administrative records for no less than 108 LOPs with the Court and provide Plaintiffs with a complete copy of those documents. 120 days after the Corps files the administrative records described in Phase 1 -ORIf a motion to dismiss is filed, 60 days from a ruling on that motion, whichever is later Phase 3: The Corps will file its certified administrative records for no less than 108 LOPs with the Court and provide Plaintiffs with a complete copy of those documents. 90 days after the Corps files the administrative records for the LOPs described in Phase 2 above 4 5 6 7 8 9 10 11 12 13 14 15 Phase 4: The Corps will file its certified administrative records for no less than 108 LOPs with the Court and provide Plaintiffs with a complete copy of those documents. 16 17 18 Phase 5: The Corps will file its certified administrative records for the last of the 424 LOPs with the Court and provide Plaintiffs with a complete copy of those documents. 19 20 21 22 23 24 90 days after the Corps files the administrative records for the LOPs described in Phase 3 above 90 days after the Corps files the administrative records for the LOPs described in Phase 4 above b. Procedure for resolving any disputes among the Parties regarding the contents of the administrative records for NWP 48 and Regional Conditions for Seattle District (Re Nationwide Permits) (Phase 1): Event Date Plaintiffs will identify and communicate to the Corps any issues regarding the completeness of, or disputing, the Corps’ certified ORDER GRANTING JOINT MOTION FOR A SCHEDULING ORDER Case No. 2:21-cv-1685-JCC 2 45 days after the Corps files the United States Department of Justice P.O. Box 7611, Washington D.C. 20044 (202) 598-0881 Case 2:21-cv-01685-JCC-DWC Document 26 Filed 07/11/22 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 administrative records for NWP 48 and the Regional Conditions for Seattle District (Re Nationwide Permits) and/or any requests for the admission of extra-record evidence. Plaintiffs will provide the Corps with copies of any materials they have or had access to and which they seek to include in the administrative record or to admit as extra-record evidence. Subject to part d. below, Plaintiffs will also identify any documents, beyond those in the Corps’ certified administrative records for the NWP 48 and Regional Conditions for Seattle District (Re Nationwide Permits), that they propose should be considered as part of the adjudication of the ESA claim. For all issues the Parties cannot resolve without adjudication regarding the Corps’ certified administrative records for NWP 48 and the Regional Conditions for Seattle District (Re Nationwide Permits), Plaintiffs will file a motion (1) challenging the contents of those records, and/or (2) seeking to admit extra-record evidence. If the Parties cannot resolve disputes regarding documents Plaintiffs proposed for consideration by the Court in adjudicating the ESA claim, Plaintiffs’ referenced motion will request that these documents be considered by the Court during the subsequent merits adjudication of the ESA claim. Deadline for the Corps to respond to any administrative record related motion. 12 13 16 17 18 19 20 21 22 23 90 days after the Corps files the administrative records for NWP 48 and the Regional Conditions for Seattle District 4 weeks from the date the motion is filed 3 weeks from the date the Corps’ response is filed Deadline for Plaintiffs to reply. 14 15 administrative records for NWP 48 and the Regional Conditions for Seattle District c. Procedure for resolving any disputes among the Parties regarding the contents of the administrative records filed by the Corps for the four phases of LOPs (Phases 2, 3, 4, and 5): Event Date 45 Days after the Plaintiffs will identify and communicate to the Corps any issues Corps files the regarding the completeness of, or disputing, the Corps’ certified certified administrative records for the four phases of LOPs and/or any requests administrative for the admission of extra-record evidence. Plaintiffs will provide the record for the last Corps with copies of any materials they have or had access to and which of the 424 LOPs they seek to include in the administrative record or to admit as extra(Phase 5) record evidence. For all issues the Parties cannot resolve without adjudication regarding the Corps’ certified administrative records for the three phases of LOPs, Plaintiffs will file a motion challenging the contents of those records and/or seeking to admit extra-record evidence. 24 ORDER GRANTING JOINT MOTION FOR A SCHEDULING ORDER Case No. 2:21-cv-1685-JCC 3 90 days after the Corps files the certified administrative records for the last United States Department of Justice P.O. Box 7611, Washington D.C. 20044 (202) 598-0881 Case 2:21-cv-01685-JCC-DWC Document 26 Filed 07/11/22 Page 4 of 6 1 of the 424 LOPs (Phase 5) 2 3 4 Deadline for the Corps to respond to any administrative record related Motion. 5 6 4 weeks from the date the motion is filed 3 weeks from the date the Corps’ response is filed Deadline for Plaintiffs to reply. 7 8 d. Procedure for resolving disputes regarding documents for consideration by the Court upon adjudicating the ESA clams: 9 Unless previously resolved through the procedures in part b. above, before the Parties 10 propose a schedule for briefing motions for summary judgment on the ESA claim, (1) Plaintiffs will identify any documents, beyond those that the Court previously ruled are to be included as 11 part of the administrative records for the NWP 48 and Regional Conditions for Seattle District 12 (Re Nationwide Permits) or that the Court will consider as extra-record evidence, that they 13 propose should be considered as part of the adjudication of the ESA claim; and (2) if the Parties 14 cannot resolve disputes regarding such documents Plaintiffs propose for consideration by the 15 Court in adjudicating the ESA claim, Defendants will file a motion to resolve any such disputes. 16 The parties agree that summary judgment briefing on the ESA claim should be deferred or stayed 17 until after the Court resolves any dispute regarding documents Plaintiffs propose for consideration by the Court in adjudicating the ESA claim. 18 19 Dated this 11th day of July, 2022 20 A 21 22 David W. Christel United States Magistrate Judge 23 24 ORDER GRANTING JOINT MOTION FOR A SCHEDULING ORDER Case No. 2:21-cv-1685-JCC 4 United States Department of Justice P.O. Box 7611, Washington D.C. 20044 (202) 598-0881 Case 2:21-cv-01685-JCC-DWC Document 26 Filed 07/11/22 Page 5 of 6 1 Presented by: 2 TODD KIM Assistant Attorney General Environment & Natural Resources Division 3 4 5 6 7 8 9 10 11 12 13 /s/ David Kaplan DAVID KAPLAN Environmental Defense Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, DC 20044 (202) 514-0997 David.Kaplan@usdoj.gov AMANDA M. STONER MD Bar No. 2012180040 United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC 20044 T: (202) 598-0881 F: (202) 305-0275 Amanda.Stoner@usdoj.gov 14 18 MARK ARTHUR BROWN Wildlife and Marine Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, DC 20044 (202) 305-0204 mark.brown@usdoj.gov 19 Attorneys for U.S. Army Corps of Engineers et al. 20 /s/ Karl Anuta Karl G. Anuta (WSB No. 21346) Law Office of Karl G. Anuta, P.C. 735 SW 1st Ave., 2nd Floor Portland, OR 97204 (503) 827-0320 kga@integra.net 15 16 17 21 22 23 24 ORDER GRANTING JOINT MOTION FOR A SCHEDULING ORDER Case No. 2:21-cv-1685-JCC 5 United States Department of Justice P.O. Box 7611, Washington D.C. 20044 (202) 598-0881 Case 2:21-cv-01685-JCC-DWC Document 26 Filed 07/11/22 Page 6 of 6 1 Attorney for Plaintiff Coalition to Protect Puget Sound Habitat 2 /s/Amy van Saunt George A. Kimbrell (WSB No. 36050) Amy van Saun (pro hac vice) Center for Food Safety 2009 NE Alberta Street, Suite 207 (971) 271-7372 gkimbrell@centerforfoodsafety.org avansaun@centerforfoodsafety.org 3 4 5 6 Attorneys for Plaintiff Center for Food Safety 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING JOINT MOTION FOR A SCHEDULING ORDER Case No. 2:21-cv-1685-JCC 6 United States Department of Justice P.O. Box 7611, Washington D.C. 20044 (202) 598-0881
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