Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

South Yuba River Citizens League v. National Marine Fisheries Service

August 25, 2008

SOUTH YUBA RIVER CITIZENS LEAGUE AND FRIENDS OF THE RIVER, PLAINTIFFS,
v.
NATIONAL MARINE FISHERIES SERVICE, ET AL., DEFENDANTS.



ORDER

Plaintiffs' motion to compel discovery was noticed for hearing on July 24, 2008. The motion was taken under submission without oral argument. Upon review of the motion and the Joint Statement re Discovery Disagreement (hereafter "Joint Stmt."), filed July 21, 2008, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

On June 17, 2008, plaintiffs filed a sixth amended complaint challenging the Brophy Diversion ("the project") under the citizen suit provision of the Endangered Species Act (ESA § 11(g); 16 U.S.C. § 1540(g)(1)), and the Administrative Procedures Act ("APA"), asserting eleven claims for relief, three of which are relevant to the instant motion:

3. National Marine Fisheries Service ("NMFS") 11/07 Biological Opinion ("BiOp") violated Section 7(a)(2) of the ESA & §§ 706(1) and (2) of the APA;*fn1

4. The Corps is violating section 9 of the ESA by operating the Project;*fn2

6. Defendant Yuba County Water Agency ("YCWA") is violating section 9 of the ESA.*fn3 (Joint Stmt. at 6-7.) Plaintiffs have withdrawn those discovery requests pertinent to claims previously dismissed by the district court, and now seek to compel responses to the following discovery requests:

* Interrogatory Nos. 7-11 and 16-20 to NMFS, Carlos Gutierrez & Rodney McInnis (docket no. 68);

* Interrogatory Nos. 7-10 and 16-20 to Corps, Pete Geren, Sec'y of the Army, and Colonel Thomas C. Chapman, District Engineer (docket no. 68);

* Request for Production of Documents Nos. 3-8, 10, and 13-22 to NMFS, Carlos M. Gutierrez and Rodney McInnis (docket no. 68);

* Request for Production of Documents Nos. 3-8, 10, and 13-20 to Corps, Pete Geren, Sec'y of the Army, and Colonel Thomas C. Chapman, District Engineer (docket no. 68);

* Request for Admission Nos. 1-35, 39-53, 55-62,*fn4 and 66-73 to NMFS, Carlos Gutierrez & Rodney McInnis (docket no. 68); and

* Request for Admission Nos. 1-35, 39-53, 55-62,*fn5 and 66-73 to Corps, Pete Geren, Sec'y of the Army, and Colonel Thomas C. Chapman, District Engineer (docket no. 68).

(Joint Stmt. at 8.)

Here, plaintiffs contend they are entitled to obtain discovery because they challenge the substantive provisions of Section 9 of the ESA, which is a "citizen suit provision [creating] an express, adequate remedy." Washington Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024 (9th Cir. 2005).

[A]ny person may commence a civil suit on his own behalf . . . to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof. 16 U.S.C. ยง 1540(g)(1). "Because this substantive statute independently authorizes a private right of action, the APA does not govern the plaintiffs' claims. Plaintiffs' suits to compel agencies to comply with the substantive provisions of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.