Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:01-cv-00591-FMA

Document 281

Filed 04/28/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) KLAMATH IRRIGATION DISTRICT et al., ) ) Plaintiffs, ) v. ) ) UNITED STATES OF AMERICA, ) No. 01-591 L ) Defendant, ) Hon. Francis M. Allegra ) PACIFIC COAST FEDERATION OF ) FISHERMEN'S ASSOCIATIONS, ) ) Defendant-Intervenor. ) PLAINTIFFS' MOTION FOR LEAVE TO FILE A CONSOLIDATED RESPONSE TO FILINGS BY AMICUS CURIAE NATURAL RESOURCES DEFENSE COUNCIL On February 27, 2006, Natural Resources Defense Council (NRDC) filed a brief amicus curiae (Docket No. 267) in support of Defendant's pending motion for summary judgment in the above-referenced case. Subsequently, on three separate occasions (March 15, 2006 (Docket No. 272), April 3, 2006 (Docket No. 273), and April 19, 2006 (Docket No. 277)), NRDC moved for leave to file notices of supplemental authority.1 For the reasons set forth below, Plaintiffs ask for leave to file a consolidated response to these four filings, on or before May 5, 2006. Argument There is no right to participate in a pending case as amicus curiae nor is there any rule in the Court of Federal Claims regarding the filing of an amicus brief; the decision of whether to allow participation is left entirely to the discretion of the court. Wolfchild v. United States, 62 Fed. Cl. 521, 536 (2004) (citation omitted); see also Nat'l Org. for Women, Inc. v. Scheidler, 223
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The Court granted each motion for leave to file notices of supplemental authority. The amicus brief was not accompanied by a motion for leave to file, thus, the docket contains no order granting leave to file the brief.

Case 1:01-cv-00591-FMA

Document 281

Filed 04/28/2006

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F.3d 615, 616 (7th Cir. 2000). With regard to the pending summary judgment motion, NRDC has not only submitted an amicus curiae brief, but it has also filed multiple motions to submit other materials in this lawsuit, all of which require a response from Plaintiffs. See, e.g., Docket Nos. 272, 273, 277, and 278. For example, NRDC's motion to file the State Resources Control Board Cases, 39 Cal. Rptr. 3d 189 (Cal. Ct. App. 2006), a decision out of the California Court of Appeals, is more than 100 pages in length and involves fourteen different consolidated cases with detailed discussion of principles of California water law, with no apparent relevance to the pending motion for summary judgment. At least one judge in this court, referring specifically to NRDC's attempt to file State Resources Control Board as amicus curiae in another pending breach of contract case stated: "[m]aterial of this nature submitted by amicus is unhelpful." Stockton East Water Dist. v. United States, No. 04-541L, 2006 WL 932374 at *23 n.13 (Fed. Cl. Apr. 10, 2006). The substantive brief of the amicus curiae is lengthy (34 pages) and raises complex arguments different from, or at odds with, the argument made by Defendant, and even the Court's own scheduling order. See, e.g., brief amicus curiae at 2, 7-8 ("[T]he government's presentation offers a somewhat incoherent and confused understanding of the law. . . . parting ways with the United States, NRDC submits that the Court should not step past the issue of breach and proceed directly to the merits of the government contract defenses."). Responding to this amicus curiae brief, thus, requires additional time and preparation for Plaintiffs to adequately respond. Accordingly, Plaintiffs ask this Court for permission to file a single, consolidated response to amicus curiae NRDC's multiple filings by May 5, 2006. Moreover, Plaintiffs also

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Case 1:01-cv-00591-FMA

Document 281

Filed 04/28/2006

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ask the Court to establish a predictable schedule by which future amicus filings might occur in this case. Conclusion For the foregoing reasons, Plaintiffs' motion should be granted.

Respectfully submitted,

s/ Nancie G. Marzulla Nancie G. Marzulla Roger J. Marzulla Zachary N. Somers MARZULLA & MARZULLA 1350 Connecticut Ave., N.W. Suite 410 Washington, D.C. 20036 202-822-6760 202-822-6774 (fax) Dated: April 28, 2006 Of Counsel: William M. Ganong General Counsel Klamath Irrigation District 514 Walnut Avenue Klamath Falls, OR 97601 Phone: 541-882-7228 Fax: 541-883-1923 Paul S. Simmons Somach, Simmons & Dunn 813 6th Street, 3rd Floor Sacramento, CA 95814-2403 Phone: (916) 446-7979 Fax: (916) 446-8199 Counsel for Plaintiffs

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