Joint status conference statement in California case

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Summary of Case and Developments The original claims and issues in this action are detailed in the Court’s Scheduling Conference Order filed March 3, 2003. In brief, this case involves the status of the delta smelt under the federal Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq. The delta smelt was listed as a threatened species in 1993. Plaintiffs’ first claim in the complaint challenged the Defendant’s alleged failure to perform the five-year status review of delta smelt required under section 4(c)(2), 16 U.S.C. § 1533(c)(2). The first claim was resolved by settlement, and on March 31, 2004 the Fish and Wildlife Service completed its five-year status review. The remaining unresolved claims in the initial complaint challenge the recovery criteria for delta smelt set forth in the Recovery Plan for Sacramento-San Joaquin Delta Native Fishes, adopted in November 1996. The issues not included in the March 13, 2003 Scheduling Conference Order relate to the five-year status review completed on March 31, 2004. In a supplemental complaint filed on January 28, 2005, the Plaintiffs challenge the adequacy of the five-year status review. In its most recent Scheduling Conference Order, filed November 23, 2004, the Court set deadlines for amendment of and response to the pleadings, lodging the administrative record, and motions regarding the adequacy of the record. The Plaintiffs have since filed a supplemental complaint, the Defendants and Intervenors have filed answers, and Defendants have filed the administrative records. further status. The November 23, 2004 Scheduling Conference Order set May 31, 2005 as the date for 2. Amendments of pleadings. No party anticipates further amendment of the pleadings. 3. Settlement. The Plaintiffs and Defendants have discussed settlement, but have not reached agreement. They do not believe that a settlement conference would be helpful at this time. They may request a conference if that view changes. Intervenors have not been included in any settlement discussions and reserve their right to raise objections to any proposed settlement that may be 797416.1 -2- JOINT STATUS CONFERENCE STATEMENT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arrived at without their participation and agreement. 4. Related matters. There is another matter pending in the United States District Court for the District of Columbia: California Farm Bureau Federation et al. v. Anne Badgley et al., No. 1:02CV02328 RCL ECF. The Farm Bureau action raises essentially the same issues as are raised in this action. The United States has moved to transfer that action to this Court. The motion to transfer has been pending since November 2004. If the Farm Bureau action is transferred, it should be consolidated with the present action. Plaintiffs believe that an action filed in the United States District Court for the Northern District of California on February 15, 2005 is related to this action as well. That action, entitled Natural Resources Defense Council, et al. v. Norton, et al., USDC ND Cal. No. C05 0690, challenges the biological opinion assessing the effects on delta smelt of operating the Central Valley Project (“CVP”) in accordance with the Operating Plan and Criteria (“OCAP”), and certain proposed changes to CVP operations. Plaintiffs filed a Notice of Related Case Pending in the Northern District of California in this action on April 12, 2005. That notice further describes the relationship between the cases. Plaintiffs have moved to intervene in the NRDC action. The motion to intervene has not yet been decided. If Plaintiffs are granted leave to intervene, they expect to file a motion in the NRDC action to have it transferred to this Court. Intervenors, some of whom are Plaintiffs in the Northern District of California case, believe that the above Notice of Related Case was premature and inappropriate for several reasons. First, because that action is properly brought in the Northern District of California, the local rules for the Eastern District of California requiring that a notice of related case be filed are inapplicable. Second, the Plaintiffs in this matter are not yet parties to that matter, so Intervernors believe their filing of a Notice in this case on the assumption that another Court will grant their intervention and then grant their transfer motion was presumptuous and inappropriate. Moreover, the Northern District action is not factually related to this action: in the Northern District case, the unrelated actions of a completely different federal agency are challenged for their impacts to delta smelt at a time when the species population is at its lowest point in the history of monitoring; and 797416.1 -3- JOINT STATUS CONFERENCE STATEMENT
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Joint status conference statement in California case

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