Fallon Paiute-Shoshone Tribe et al v. U.S. Department of the Interior et al, No. 3:2021cv00512 - Document 67 (D. Nev. 2022)
Court Description: ORDER granting ECF No. 65 Stipulation to Extend Time : 1.Plaintiffs' opening summary judgment brief will be due on September 16, 2022, and will be limited to 60 pages. 2.Federal Defendants' and Ormat's combin ed responses to Plaintiffs' motion for summary judgment and opening briefs in support of their cross-motions for summary judgment will be due on October 14, 2022. 3. Plaintiffs shall file a combined reply in support of their summar y judgment motion and in response to Federal Defendants' and Ormat's cross-motions for summary judgment, which will be due on November 4, 2022. 4.Federal Defendants' and Ormat's replies in support of their cross-motions for summary judgment will each be due on December 9, 2022. (See pdf Order for additional specifics.) Signed by Magistrate Judge Craig S. Denney on 9/8/2022. (Copies have been distributed pursuant to the NEF - DRM)
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Fallon Paiute-Shoshone Tribe et al v. U.S. Department of the Interior et al Doc. 67 1 1 1 2 3 4 5 6 SCOTT LAKE NV Bar No. 15765 CENTER FOR BIOLOGICAL DIVERSITY P.O. Box 6205 Reno, NV 89513 Phone: (802) 299-7495 Email: slake@biologicaldiversity.org WYATT GOLDING WA Bar No. 44412 (admitted pro hac vice) ZIONTZ CHESTNUT 1230 Fourth Ave, Suite 1230 Seattle, WA 98070 Phone: (206) 480-1230 Email: wgolding@ziontzchestnut.com Attorney for Plaintiff Center for Biological Diversity Attorney for Plaintiff Fallon Paiute-Shoshone Tribe GORDON DEPAOLI NV Bar. No. 0195 WOODBURN AND WEDGE 6100 Neil Road, Suite 500 Reno, NV 89511 Phone: (775) 688-3010 Email: gdepaoli@woodburnandwedge.com 7 8 9 10 Local Counsel for Plaintiff Fallon PaiuteShoshone Tribe 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 The FALLON PAIUTE-SHOSHONE TRIBE and the CENTER FOR BIOLOGICAL DIVERSITY, 14 15 Case No: 3:21-cv-00512-RCJ-CSD Plaintiffs, 16 17 vs. 18 U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT, and JAKE VIALPANDO in his official capacity as Field Manager of the Bureau of Land Management Stillwater Field Office, and ORMAT NEVADA, INC., 19 20 21 JOINT STIPULATION AMENDING SCHEDULING ORDER Defendants. 22 23 24 25 26 27 1 1 Dockets.Justia.com 1 1 1 Plaintiffs Fallon Paiute-Shoshone Tribe (“FPST”) and the Center for Biological Diversity 2 (“CBD”), Federal Defendants U.S. Department of the Interior, et al. (“Federal Defendants”), and 3 Defendant Ormat Nevada, Inc. (“Ormat”) (together, the “Parties”) have conferred and hereby 4 jointly submit the following stipulation and amendment to the scheduling order, ECF 62, for the 5 Court’s consideration. 6 Pursuant to the Joint Stipulation on Scheduling Order, the Parties have conferred 7 concerning the completeness of the Administrative Records and the admission of extra-record 8 evidence. Federal Defendants have agreed to provide additional materials for inclusion in the ESA 9 Administrative Record by Thursday, September 8. In light of Federal Defendants’ agreement to 10 provide additional record materials, Plaintiffs do not contest the completeness of the 11 Administrative Records. 12 However, Plaintiffs intend to introduce and rely on extra-record evidence; namely the 13 Declaration of Michelle Gordon. Ms. Gordon is the principal author of the published, peer- 14 reviewed scientific study identifying the Dixie Valley toad as a distinct species. Plaintiffs take the 15 position that reliance on Ms. Gordon’s declaration is appropriate because claims under the ESA 16 are not limited in scope by the APA and thus are not limited to the administrative record compiled 17 by the agency. Federal Defendants oppose the introduction of Ms. Gordon’s declaration. Federal 18 Defendants take the position that Plaintiffs’ ESA claims are record-review claims and that 19 Plaintiffs may not rely on Ms. Gordon’s declaration without an order from this Court admitting 20 the declaration as proper extra-record evidence. 21 The Parties have agreed to resolve this disagreement through a motion to strike, which 22 Federal Defendants and/or Ormat may file concurrently with their responses to Plaintiffs’ motion 23 for summary judgment and opening briefs in support of their cross-motions for summary 24 judgment. 25 Finally, due to Federal Defendants’ production of additional record materials, as well as 26 unforeseen scheduling conflicts affecting the availability of Plaintiffs’ attorneys, the Parties have 27 2 1 1 1 1 agreed to amend the briefing schedule set out in the scheduling order, ECF 62, to extend all briefing 2 deadlines by 7 days, as follows: 1. Plaintiffs’ opening summary judgment brief will be due on September 16, 2022, 3 and will be limited to 60 pages. 4 5 2. Federal Defendants’ and Ormat’s combined responses to Plaintiffs’ motion for 6 summary judgment and opening briefs in support of their cross-motions for 7 summary judgment will be due on October 14, 2022. Federal Defendants and Ormat 8 shall each file a brief in support of their cross-motions for summary judgment and 9 responding to Plaintiffs’ motion for summary judgment. Federal Defendants’ brief 10 and Ormat’s brief shall each be limited to 45 pages. Federal Defendants and/or 11 Ormat may also file a motion to strike concerning the admission of extra-record 12 evidence concurrently with their combined responses/motions for summary 13 judgment. If filed, the motion(s) to strike shall be limited to 15 pages. 14 3. Plaintiffs shall file a combined reply in support of their summary judgment motion 15 and in response to Federal Defendants’ and Ormat’s cross-motions for summary 16 judgment, which will be due on November 4, 2022. Plaintiffs’ brief shall be limited 17 to 60 pages. If a motion to strike is filed, Plaintiffs may respond concurrently with 18 their reply/response. Plaintiffs’ response opposing the motion(s) to strike shall be 19 limited to 15 pages. 20 4. Federal Defendants’ and Ormat’s replies in support of their cross-motions for 21 summary judgment will each be due on December 9, 2022, and each will be limited 22 to 45 pages. If a motion to strike is filed, Federal Defendants and/or Ormat may 23 reply concurrently with their reply in support of their cross-motions for summary 24 judgment. Replies in support of a motion to strike shall be limited to 10 pages. 25 5. Plaintiffs do not waive any claims under the ESA or RFRA which may not be 26 resolved on summary judgment due to unresolved issues of material fact. Plaintiffs 27 take the position that because the ESA and RFRA each provide their own cause of 3 1 1 1 1 action, claims under these statutes are not limited in scope by the APA and thus 2 may not be limited to the administrative record compiled by the agency. Federal 3 Defendants’ take the position that ESA Claims are record-review claims governed 4 by both the scope and standard of the APA that do not present any unresolved issues 5 of material fact. Further, Federal Defendants and Ormat take the position that 6 summary judgment and the briefing schedule set forth above can resolve all claims 7 in Plaintiffs’ First Amended Complaint.1 8 In light of the Parties’ commitment to the expedited briefing schedule outlined herein, and 9 Ormat’s intention to suspend construction until either completion of the Section 7 consultation 10 process or the end of the year, the Parties respectfully request expedited review by the Court, with 11 a decision on the merits before the end of 2022. 12 13 Dated September 8, 2022 14 15 Respectfully submitted, /s/ Scott Lake Scott Lake Center for Biological Diversity P.O. Box 6205 Reno, NV 89513 (802) 299-7495 slake@biologicaldiversity.org 16 17 18 19 Attorney for Plaintiff Center for Biological Diversity 20 21 /s/ Wyatt Golding Wyatt Golding WA Bar No. 44412 (admitted pro hac vice) Ziontz Chestnut 22 23 24 Federal Defendants also take the position that because Plaintiffs’ APA claims challenge a final agency action, those claims in this case should be decided primarily based on the Administrative Record compiled by Federal Defendants. However, should the Court find that the introduction of extra-record evidence is appropriate, the Parties do not waive their right to seek discovery regarding the RFRA and ESA claims. 1 25 26 27 4 1 1 1 1230 Fourth Ave, Suite 1230 Seattle, WA 98070 1 2 Gordon H. DePaoli Woodburn & Wedge 6100 Neil Road Reno, NV, 89511 Phone: (775) 688-3010 Email: gdepaoli@woodburnandwedge.com 3 4 5 6 Attorneys for Plaintiff Fallon Paiute-Shoshone Tribe 7 Sara E. Costello U.S. Department of Justice Environment and Natural Resources Division PO Box 7611 Washington, D.C. 20044-7611 Phone: 202-305-0484 Email: sara.costello2@usdoj.gov 8 9 10 11 12 /s/ Esosa R. Aimufua Esosa R. Aimufua U.S. Department of Justice Environment and Natural Resources Division Natural Resources Section 150 M. Street, NE, Third Floor Washington, D.C. 20002 Phone: 202-532-3818 Email: esosa.aimufua@usdoj.gov 13 14 15 16 17 18 Kamela A. Caschette U.S. Department of Justice Environment and Natural Resources Division Wildlife and Marine Resources Section 150 M. Street, NE, Third Floor Washington, D.C. 20002 Phone: 202-305-0340 Email: kamela.caschette@usdoj.gov 19 20 21 22 23 Holly A. Vance U.S. Attorney’s Office 400 S. Virginia Street, Suite 900 Reno, NV 89501 Phone: 775-784-5438 Email: Holly.A.Vance@usdoj.gov 24 25 26 27 5 1 1 1 Attorneys for Federal Defendants - U.S. Department of the Interior, Bureau of Land Management, and Jake Vialpando in his official capacity as Field Manager of the Bureau of Land Management Stillwater Field Office 1 2 3 4 Timothy A. Lukas, Esq. (Nevada Bar No. 4678) Sarah C. Bordelon, Esq. (Nevada Bar No. 14683) Erica K. Nannini, Esq. (Nevada Bar No. 13922) Holland & Hart LLP 5441 Kietzke Lane, Suite 200 Reno, NV 89511 Telephone: (775) 327-3011 Fax: (775) 786-6179 tlukas@hollandhart.com scbordelon@hollandhart.com eknannini@hollandhart.com 5 6 7 8 9 10 11 12 /s/ Hadassah Reimer Hadassah M. Reimer, Esq. (Wyo. Bar No. 6-3825) Holland & Hart LLP P.O. Box 68 Jackson, WY 83001 Tel: 307-734-4517 Fax: 307-739-9544 hmreimer@hollandhart.com 13 14 15 16 17 18 Laura R. Jacobsen, Esq. (Nevada Bar No. 13699) Ormat Technologies, Inc. 6140 Plumas Street Reno, NV 89519 Tel: 775-356-9029 Fax: 775-356-9039 ljacobsen@ormat.com 19 20 21 22 23 Attorneys for Defendant-Intervenor Ormat Nevada Inc. 24 25 26 27 6 1 1 1 ORDER 1 2 IT IS SO ORDERED. 3 DATED: September 8, 2022. 4 5 6 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7 1
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