Free Case Management Statement - District Court of California - California

Case 3:08-cv-01488-SI

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RONALD J. TENPAS, Assistant Attorney General JEAN E. WILLIAMS, Section Chief LAWSON E. FITE, Trial Attorney (Oregon Bar No. 055573) U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7369 Washington, DC 20044-7369 Phone: (202) 305-0217 Fax: (202) 305-0275 Email: [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) MAN AGAINST EXTINCTION, a/k/a ) RICHARD MAX STRAHAN, ) ) Plaintiff, ) v. ) ) H. DALE HALL, Director of the United ) States Fish and Wildlife Service, and ) JAMES W. BALSIGER, Acting Assistant ) Administrator for Fisheries, National Marine ) Fisheries Service, ) ) Defendants. ) )

No. C 08-01488 SI DEFENDANTS' SEPARATE CASE MANAGEMENT STATEMENT Initial Case Management Conference: Date: July 11, 2008 Time: 2:00 p.m.

Case 3:08-cv-01488-SI

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SEPARATE CASE MANAGEMENT STATEMENT Pursuant to Civil L.R. 16-9(a), Federal Defendants in the above-entitled action, H. Dale Hall, Director of the United States Fish and Wildlife Service, and James W. Balsiger, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service, submit this Separate Case Management Statement and request the Court to adopt it as its Case Management Order in this case. Counsel for Federal Defendants previously attempted to obtain Plaintiff's consent to a Joint Case Management Statement, but have received no response. 1. Jurisdiction and Service Defendants have filed a Motion to Dismiss this action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. In the event the motion is denied, Defendants reserve the right to challenge the Plaintiff's standing to bring this action. All parties have been served. Facts This case concerns the decision of the National Marine Fisheries Service ("NMFS") that right whales in the North Atlantic and North Pacific Oceans should be listed as distinct endangered species. Prior to 2008, all right whales in the Northern Hemisphere were listed as one endangered species. The Plaintiff in this action, Richard Max Strahan, or Man Against Extinction, brings claims relating to this listing decision. Plaintiff asserts that NMFS's listing decision is in violation of Section 4 of the ESA, asserts that NMFS has violated Section 7 of the ESA by failing to consult on the listing decision, and brings a challenge under ESA Section 4 to NMFS's 90-day finding on Plaintiff's petition to list one global species of right whale. No factual issues are in dispute. Legal Issues The parties dispute, first, whether this Court has subject matter jurisdiction due to Plaintiff's failure to notify Defendants of his intent to file suit 60 days before filing, pursuant to 16 U.S.C. § 1540(g). Second, the parties dispute whether Count 2 of Plaintiff's Complaint fails to state a claim upon which relief can be granted. Third, the parties dispute whether Plaintiff can state a claim for relief against Defendant H. Dale Hall. 2

Case 3:08-cv-01488-SI

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The parties further dispute whether the challenged agency actions constitute "agency action unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1), or are in violation of the Endangered Species Act and thus are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). 4. Motions On June 16, 2008, Defendants brought a motion to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. This Motion is presently set for hearing on August 22, 2008. In the event the Motion to Dismiss is denied in whole or in part, Defendants anticipate that this case will be resolved on cross-motions for summary judgment on review of the administrative record underlying the challenged agency decisions. No other motions are anticipated. Amendment of Pleadings Defendants are unaware of any intention of Plaintiff to amend its pleading. Defendants will file any further responsive pleading, as appropriate or necessary, after resolution of the Motion to Dismiss. 6. Evidence Preservation The Service will prepare the administrative record in accord with its duty to do so under the Administrative Procedure Act. 7. Disclosures This action is exempt from initial disclosures pursuant to Fed. R. Civ. P. 26(e) because it is an action for review on an administrative record. 8. Discovery As this case is an action for review on an administrative record, no discovery is permitted or anticipated. Center for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 930 n.4 (9th Cir. 2006). //

Defendants' Separate Case Management Statement No. C 08-1488 SI

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9.

Class Actions Not applicable.

10.

Related Cases There are no related cases.

11.

Relief Plaintiff seeks a declaratory judgment that the Service is in violation of the ESA and the

APA and injunctive relief compelling remand of the challenged agency decisions and initiation of consultation pursuant to Section 7 of the ESA. No counterclaims are presented. 12. Settlement and ADR Defendants do not believe that ADR would be helpful to resolution of this case. An ADR telephone conference is set for July 9, 2008. 13. Consent to Magistrate Judge Defendants do not consent to a magistrate judge for all purposes. 14. Other References Defendants do not believe this case is suitable for other references. 15. Narrowing of Issues In the event the case is not entirely resolved by the pending Motion to Dismiss, Defendants believe this case is best resolved on cross-motions for summary judgment. 16. Expedited Schedule Defendants do not believe an expedited schedule is appropriate. 17. Scheduling Defendants' Motion to Dismiss is presently set for hearing on August 22, 2008. In the event that the motion is not granted, Defendants propose the following schedule for resolution of the case on cross-motions for summary judgment: 60 days after entry of Order on Motion to Dismiss: Defendants shall file the administrative record

Defendants' Separate Case Management Statement No. C 08-1488 SI

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60 days after filing of record:

Plaintiff's motion for summary judgment and accompanying brief

30 days thereafter:

Defendants' cross-motion for summary judgment, response to Plaintiff's motion, and accompanying brief

30 days thereafter: 30 days thereafter:

Plaintiff's response/reply brief Defendants' reply brief Hearing on motions to be scheduled at the Court's convenience on the next available oral argument calendar

18.

Trial Defendants do not anticipate need for trial.

19.

Other Interested Parties There are no non-party interested entities or persons.

20.

Other Matters None.

Dated: July 7, 2008

Respectfully Submitted, RONALD J. TENPAS, Assistant Attorney General JEAN E. WILLIAMS, Section Chief /s/ Lawson E. Fite LAWSON E. FITE, Trial Attorney (Oregon Bar No. 055573) U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station P.O. Box 7369 Washington, DC 20044-7369 Phone: (202) 305-0217 Fax: (202) 305-0275

Defendants' Separate Case Management Statement No. C 08-1488 SI

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Case 3:08-cv-01488-SI

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Defendants' Separate Case Management Statement No. C 08-1488 SI

Email: [email protected] Attorneys for Defendants

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No. C 08-1488 SI Certificate of Service

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

MAN AGAINST EXTINCTION, Plaintiff, v. H. DALE HALL, et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) )

No. C 08-1488 SI CERTIFICATE OF SERVICE

I hereby certify that on July 7, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such to the attorneys of record.

/s/ Lawson E. Fite LAWSON E. FITE