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Natural Resources Defense Council v. Kempthorne

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 26, 2009

NATURAL RESOURCES DEFENSE COUNCIL, ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.
SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, ET AL., DEFENDANT-INTERVENORS.
ANDERSON-COTTONWOOD IRRIGATION DISTRICT, ET AL., JOINED PARTIES.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

REQUEST TO FILE ORDER RE FEDERAL DEFENDANTS' SUPPLEMENTAL, CLARIFYING MEMORANDUM (DOC. 827)

On March 13, 2009, the district court heard oral argument on the applicability of the Supreme Court case, National Association of Home Builders v. Defenders of Wildlife, 127 S.Ct. 2518 (2008), to Plaintiffs' request for rescission of a number of Sacramento River Settlement Contracts ("SRS Contracts"), after which the matter was submitted for decision. Doc. 826. On March 24, 2009, Federal Defendants requested permission to file a supplemental brief to clarify their position on the application of Home Builders to the SRS Contracts. Doc. 827. The same day, Plaintiffs filed an opposition to the request, arguing that supplemental briefing would further delay decision on their motion, noting that "Plaintiffs are anxious to obtain a ruling on this matter, as the Bureau's implementation of the [SRS] Contracts is likely to have a significant effect on threatened and endangered fish and their critical habitat this year." Doc. 828. at 2. Plaintiffs further note:

The National Marine Fisheries Service has explained that the Bureau may need to reduce deliveries to the Settlement Contractors below 75% in April and May of this year in order to preserve sufficient cold water in Shasta Reservoir for the protection of listed fish later in the season. Dec. of Katherine Poole, Ex. 1 Plaintiffs' motion is further delayed, the Court may (Feb. 27, 2009) (Doc. 817-2). If a ruling on soon find itself facing resolution of the same issue in an expedited manner in the related case of PCFFA v. Gutierrez.

Id.

Plaintiffs concerns are legitimate. However, given the confusing and contradictory statements made by Federal Defendants during oral argument, further clarification of Federal Defendants' position in this case is necessary. Consideration of their supplemental filing will result in minimal delay, if any. Federal Defendants' request for permission to file a supplemental brief, lodged as Doc. 827-2, is GRANTED. Plaintiffs and the Settlement Contractors shall have until April 1, 2009 to file responsive briefs no longer than 5 pages in length.

SO ORDERED

20090326

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