Center for Biological Diversity v. U.S. Fish and Wildlife Service et al, No. 2:2020cv01812 - Document 71 (D. Nev. 2021)
Court Description: ORDER granting 70 Motion to Extend Time to File Motion for Attorney's Fees. Motion due by 2/4/2022. Signed by Judge James C. Mahan on 11/1/2021. (Copies have been distributed pursuant to the NEF - DRS)
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Center for Biological Diversity v. U.S. Fish and Wildlife Service et al Doc. 71 Case 2:20-cv-01812-JCM-NJK Document 71 70 Filed 11/01/21 Page 1 of 9 6 1 ALLISON N. MELTON (SBC 45088) (pro hac vice) Center for Biological Diversity 2 P.O. Box 3024 Crested Butte, CO 81224 3 Phone: (970) 309-2008 amelton@biologicaldiversity.org 4 Attorney for Plaintiff; additional counsel on signature page 5 CHRISTOPHER CHIOU, Acting United States Attorney SKYLER H. PEARSON, Assistant United States Attorney 6 U.S. Attorney’s Office 7 501 Las Vegas Boulevard South, Suite 1100 Las Vegas, NV 89101 8 Tel 702-388-6530 E-mail: skyler.pearson@usdoj.gov 9 10 ANTHONY D. ORTIZ, Trial Attorney U.S. Department of Justice 11 Environment & Natural Resources Division Wildlife & Marine Resources Division Ben Franklin Station, P.O. Box 7611 12 Washington, D.C. 20044-7611 Tel.: (202) 305-5708 / Fax: (202) 305-0506 13 Anthony.d.ortiz@usdoj.gov 14 Attorneys for Federal Defendants, additional counsel on signature page UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 15 16 17 CENTER FOR BIOLOGICAL DIVERSITY, Case No.: 2:20-cv-1812-JCM-NJK 18 19 20 Plaintiff, vs. FOURTH UNOPPOSED JOINT MOTION TO EXTEND TIME TO FILE A MOTION FOR AWARD OF ATTORNEYS’ FEES AND LITIGATION EXPENSES 21 HAALAND, ET AL, 22 23 Defendants, and 24 IONEER USA CORPORATION, 25 Defendant-Intervenor. 26 27 28 Dockets.Justia.com Case 2:20-cv-01812-JCM-NJK Document 71 70 Filed 11/01/21 Page 2 of 9 6 1 Plaintiff and Federal Defendants hereby file this fourth unopposed joint motion to extend 2 the time for Plaintiff to file a motion for attorneys’ fees and litigation expenses to allow the 3 Plaintiff and Federal Defendants additional time to explore resolving the matter without further 4 Court involvement. Counsel for Defendant-Intervenor was conferred with and takes no position on 5 this joint motion. 6 Such a motion will further interest of judicial efficiency for the following reasons: 7 On April 21, 2021, the Court issued an Order granting summary judgment for Plaintiff on 8 Plaintiff’s third claim, brought pursuant to the citizen-suit provision of the Endangered Species 9 Act, 16 U.S.C. § 1540(g)(1)(C), and ordered FWS to submit to the Federal Register proposed 10 rules to list and to designate critical habitat rule for Tiehm’s buckwheat within 30 days. ECF 11 No. 42. The Court denied summary judgment for Plaintiff on the first and second claims of the 12 Amended Complaint, ECF No. 11. Id. The Court entered judgment that same day. ECF No. 43. 13 On April 28, 2021, Defendants filed an emergency motion to amend or alter the judgment 14 as to Plaintiff’s third claim for relief, and moved to stay judgment pending its resolution. ECF 15 Nos. 44 (“59(e) Motion”), 45. On April 30, the Court granted Defendants’ motion for stay of 16 judgment. ECF No. 47. All briefs relating to the 59(e) Motion were submitted by May 9, 2021. 17 ECF Nos. 48-50. 18 On May 9, 2021, Federal Defendants and Plaintiff filed their first joint motion to extend 19 the time for the Court’s ruling on the 59(e) Motion by another week, until May 17, 2021, to 20 allow Federal Defendants and the Center to negotiate the terms of a stipulation that would 21 remove the need for the Court to rule on the Motion. ECF No. 51. On May 10, 2021, the Court 22 granted their motion, withheld its ruling on the 59(e) Motion until May 17, 2021, and ordered 23 Federal Defendants and the Center to provide a status update by May 14, 2021 as to whether they 24 had reached agreement. ECF No. 56. 25 In a joint status report and a second joint motion to extend filed on May 14, 2021, the 26 Center and Federal Defendants informed the Court that the parties had reached an agreement in 27 principle but required additional time to finalize a stipulation. They requested that the Court 28 2 Case 2:20-cv-01812-JCM-NJK Document 71 70 Filed 11/01/21 Page 3 of 9 6 1 further withhold a ruling on the 59(e) Motion until May 19, 2021, and advised they would 2 provide another update by May 18, 2021. ECF Nos. 57, 58. 3 On May 17, 2021, the parties filed an updated status report, ECF No. 61, and a stipulation 4 with a proposed Remedy Order that resolved their dispute and requested that the Court enter 5 their Remedy Order for Plaintiff’s Claim 3. ECF No. 60. The Court entered the Remedy Order 6 that same day and denied both the Defendants’ 59(e) Motion and the parties’ second joint motion 7 to extend as moot. ECF No. 62. On May 20, 2021, the Court issued an amended judgment on 8 Plaintiff’s third claim for which it had granted summary judgment for Plaintiff on April 21, 9 2020. ECF No. 63; ECF No. 42. 10 The Remedy Order requires Federal Defendants to submit to the Federal Register no later 11 than May 31, 2021, a 12-month finding pursuant to 16 U.S.C § 1533(b)(3)(B) as to whether 12 listing the Tiehm’s buckwheat is either “warranted” or “not warranted.” ECF No. 62, para. A, l. 13 5. The Remedy Order further requires that if FWS makes a “warranted” 12-month finding, then 14 no later than September 30, 2021, Federal Defendants shall submit a proposed listing rule to the 15 Federal Register pursuant to 16 U.S.C. § 1533(b)(5)(A)(i). Id. para. B. If FWS makes a 16 “warranted” 12-month finding and finds that designating critical habitat is prudent and 17 determinable, then unless the Office of Management and Budget determines that a critical habitat 18 designation would qualify as a “significant regulatory action” under Executive Order 12,866, 19 Defendants shall submit to the Federal Register a proposed critical habitat designation pursuant 20 to 16 U.S.C. § 1533(a)(3)(A)(i) by January 31, 2022. If the Office of Management and Budget 21 determines the proposed critical habitat designation is a “significant regulatory action” under 22 Executive Order 12,866, Federal Defendants will have until May 2, 2022 to submit the proposed 23 critical habitat designation to the Federal Register. See id. para. C. 24 Under Fed. R. Civ. P. 54(d)(2)(B), Plaintiff has 14 days from the entry of judgment to file 25 any motion for attorneys’ fees and litigation costs. See Local Practice Rule 54-1(a); 16 U.S.C. § 26 1540(g)(4) (“The court, in issuing any final order in any suit brought pursuant to paragraph (1) of 27 28 3 Case 2:20-cv-01812-JCM-NJK Document 71 70 Filed 11/01/21 Page 4 of 9 6 1 this subsection, may award costs of litigation (including reasonable attorney and expert witness 2 fees) to any party, whenever the court determines such award is appropriate.”). 3 On May 28, 2021, Federal Defendants and Plaintiff filed a Joint Motion to Extend Time 4 to File a Motion for Award of Attorneys’ Fees and Litigation Expenses. This motion asked the 5 Court to grant a 60-day extension for the June 3, 2021, deadline for Plaintiff to file a motion for 6 attorneys’ fees and costs to allow the parties time to seek resolution of this matter without further 7 Court involvement. 8 9 On June 1, 2021, this Court granted Federal Defendants’ and Plaintiff’s Joint Motion to Extend Time to File a Motion for Award of Attorneys’ Fees and Litigation Expenses, setting July 10 19, 2021, as the date for Federal Defendants’ and Plaintiff’s to provide a status update as to the 11 resolution of Plaintiff’s attorneys’ fees and litigation costs or Plaintiff will file their motion for 12 such fees and costs. 13 On July 22, 2021, this Court granted Federal Defendants’ and Plaintiff’s Second 14 Unopposed Joint Motion to Extend Time to File a Motion for Award of Attorneys’ Fees and 15 Litigation Expenses, setting September 7, 2021, as the date for Federal Defendants’ and 16 Plaintiff’s to provide a status update as to the resolution of Plaintiff’s attorneys’ fees and 17 litigation costs or Plaintiff will file their motion for such fees and costs. 18 On September 8, 2021, this Court granted Federal Defendants’ and Plaintiff’s Third 19 Unopposed Joint Motion to Extend Time to File a Motion for Award of Attorneys’ Fees and 20 Litigation Expenses, setting November 6, 2021, as the date for Federal Defendants’ and 21 Plaintiff’s to provide a status update as to the resolution of Plaintiff’s attorneys’ fees and 22 litigation costs or Plaintiff will file their motion for such fees and costs. 23 Federal Defendant’s and Plaintiff are continuing to explore resolution of Plaintiff’s claim 24 for attorneys’ fees and litigation costs and in light of the intervening holidays and to afford 25 additional time for anticipated resolution of this issue, seek additional time to resolve this matter 26 absent any further involvement from this Court. Accordingly, the parties respectfully request a 27 fourth extension of time in Fed. R. Civ. P. 54(d)(2)(B) of another 90 days. 28 4 Case 2:20-cv-01812-JCM-NJK Document 71 70 Filed 11/01/21 Page 5 of 9 6 1 By agreeing to this request for additional time, Federal Defendants are not conceding 2 that Plaintiff is entitled to fees. Federal Defendants reserve all rights and defense to entitlement 3 and reasonableness of any fee request. 4 The parties request that this Court set a date of February 4, 2022 for the parties to provide 5 a status update on the resolution of Plaintiff’s attorneys’ fees and litigation costs or for Plaintiff 6 to file their motion for such fees and costs, if such a motion is necessary. 7 8 9 10 11 12 DATED: November 1, 2021 Respectfully submitted, /s/Allison N. Melton Allison N. Melton (SBC 45088) (pro hac vice) Center for Biological Diversity P.O. Box 3024 Crested Butte, CO 81224 Phone: (970) 309-2008 amelton@biologicaldiversity.org 13 14 15 16 17 Amy R. Atwood (SBO 060407) (pro hac vice) Center for Biological Diversity P.O. Box 11374 Portland, OR 97211 Phone: (971) 717-6401 atwood@biologicaldiversity.org 21 Christopher W. Mixson, Esq. (SBN 10685) Don Springmeyer, Esq. (SBN 1021) Kemp Jones, LLP 3800 Howard Hughes Parkway Wells Fargo Tower Seventeenth Floor Las Vegas, Nevada 89169 Phone: (702) 385-6000 / Fax: (702) 385-6001 c.mixson@kempjones.com d.springmeyer@kempjones.com 22 Attorneys for Plaintiff 18 19 20 23 24 25 26 27 CHRISTOPHER CHIOU , Acting United States Attorney SKYLER H. PEARSON, Assistant United States Attorney U.S. Attorney’s Office 501 Las Vegas Boulevard South, Suite 1100 Las Vegas, NV 89101 28 5 Case 2:20-cv-01812-JCM-NJK Document 71 70 Filed 11/01/21 Page 6 of 9 6 1 2 3 4 5 6 7 8 9 10 11 12 13 Tel 702-388-6530 E-mail: skyler.pearson@usdoj.gov s/Anthony D. Ortiz ANTHONY D. ORTIZ Trial Attorney, (D.C. Bar No. 978873) United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section P.O. Box 7611, Ben Franklin Station Washington, D.C. 20044-7611 Tel: (202) 305-5708 Fax: (202) 305-0275 E-mail: anthony.d.ortiz@usdoj.gov LEILANI DOKTOR, Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 Tel.: (202) 305-0447 / Fax: (202) 305-0506 leilani.doktor@usdoj.com 14 15 Attorneys for Federal Defendants 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case Case2:20-cv-01812-JCM-NJK 2:20-cv-01812-JCM-NJK Document Document70-1 71 Filed Filed11/01/21 11/01/21 Page Page71ofof93 1 ALLISON N. MELTON (SBC 45088) (pro hac vice) Center for Biological Diversity 2 P.O. Box 3024 Crested Butte, CO 81224 3 Phone: (970) 309-2008 amelton@biologicaldiversity.org 4 Attorney for Plaintiff; additional counsel listed below 5 CHRISTOPHER CHIOU, Acting United States Attorney SKYLER H. PEARSON, Assistant United States Attorney 6 U.S. Attorney’s Office 7 501 Las Vegas Boulevard South, Suite 1100 Las Vegas, NV 89101 8 Tel 702-388-6530 E-mail: skyler.pearson@usdoj.gov 9 10 ANTHONY D. ORTIZ, Trial Attorney U.S. Department of Justice 11 Environment & Natural Resources Division Wildlife & Marine Resources Division Ben Franklin Station, P.O. Box 7611 12 Washington, D.C. 20044-7611 Tel.: (202) 305-5708 / Fax: (202) 305-0506 13 Anthony.d.ortiz@usdoj.gov 14 Attorneys for Federal Defendants; additional counsel below UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 15 16 17 CENTER FOR BIOLOGICAL DIVERSITY, Case No.: 2:20-cv-1812-JCM-NJK 18 19 20 Plaintiff, vs. 21 HAALAND, ET AL, 22 23 Defendants, and 24 IONEER USA CORPORATION, 25 26 27 28 Defendant-Intervenor. [PROPOSED ORDER] GRANTING FOURTH UNOPPOSED MOTION TO EXTEND TIME TO FILE A MOTION FOR AWARD OF ATTORNEYS’ FEES AND LITIGATION EXPENSES Case Case2:20-cv-01812-JCM-NJK 2:20-cv-01812-JCM-NJK Document Document70-1 71 Filed Filed11/01/21 11/01/21 Page Page82ofof93 1 Having come before the Court on Plaintiff’s and Federal Defendants’ Fourth Unopposed 2 Joint Motion to Extend Time to File a Motion for Award of Attorneys’ Fees and Litigation 3 Expenses (ECF No. 70), IT IS HEREBY ORDERED, an extension of time for Plaintiff to file a 4 motion for attorneys’ fees and litigation costs is extended by 90 days to February 4, 2022. The 5 parties shall provide a status update as to the resolution of Plaintiff’s attorneys’ fees and 6 litigation costs or Plaintiff will file their motion for such fees and costs, if such a motion is 7 necessary, by February 4, 2022. 8 9 10 IT IS SO ORDERED. November 1, 2021 2021. Dated: __________, __________________________ UNITED STATES DISTRICT JUDGE 11 12 13 14 DATED: November 1, 2021 15 16 17 18 19 20 21 22 23 24 25 26 27 Submitted by: Allison N. Melton (SBC 45088) (pro hac vice) Center for Biological Diversity P.O. Box 3024 Crested Butte, CO 81224 Phone: (970) 309-2008 amelton@biologicaldiversity.org Amy R. Atwood (SBO 060407) (pro hac vice) Center for Biological Diversity P.O. Box 11374 Portland, OR 97211 Phone: (971) 717-6401 atwood@biologicaldiversity.org Christopher W. Mixson, Esq. (SBN 10685) Don Springmeyer, Esq. (SBN 1021) Kemp Jones, LLP 3800 Howard Hughes Parkway Wells Fargo Tower Seventeenth Floor Las Vegas, Nevada 89169 Phone: (702) 385-6000 / Fax: (702) 385-6001 28 2 Case Case2:20-cv-01812-JCM-NJK 2:20-cv-01812-JCM-NJK Document Document70-1 71 Filed Filed11/01/21 11/01/21 Page Page93ofof93 1 c.mixson@kempjones.com d.springmeyer@kempjones.com 2 Attorneys for Plaintiff 3 4 5 6 7 8 9 10 11 12 13 CHRISTOPHER CHIOU , Acting United States Attorney SKYLER H. PEARSON, Assistant United States Attorney U.S. Attorney’s Office 501 Las Vegas Boulevard South, Suite 1100 Las Vegas, NV 89101 Tel 702-388-6530 E-mail: skyler.pearson@usdoj.gov ANTHONY D. ORTIZ Trial Attorney, (D.C. Bar No. 978873) United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section P.O. Box 7611, Ben Franklin Station Washington, D.C. 20044-7611 Tel: (202) 305-5708 Fax: (202) 305-0275 E-mail: anthony.d.ortiz@usdoj.gov 14 15 16 17 18 19 20 LEILANI DOKTOR, Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section Ben Franklin Station, P.O. Box 7611 Washington, D.C. 20044-7611 Tel.: (202) 305-0447 / Fax: (202) 305-0506 leilani.doktor@usdoj.com Attorneys for Federal Defendants 21 22 23 24 25 26 27 28 3
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