The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SECOND AMENDMENT TO JUNE 24, 2009 SCHEDULING CONFERENCE ORDER
The June 24, 2009 Scheduling Order in the Delta Smelt Cases provides, in Part V.C., that dispositive motions addressing legal issues appropriate for early resolution are those "set forth in the Matrix listing Common Claims Appropriate for Early Disposition," attached as Exhibit A to the Scheduling Order.
The referenced section in that Matrix lists (1) claims brought under the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act for failure to comply with NEPA prior to the preparation and issuance of the 2008 Biological Opinion; and (2) claims brought under the U.S. Constitution alleging that application of the Endangered Species Act violates the Commerce Clause.
In addition to these claims, Plaintiffs requested at oral argument that first round of summary judgment motions (i.e., those suitable for early disposition) include certain claims concerning the issuance of the Reasonable and Prudent Alternative ("RPA"). Plaintiffs assert that these RPA claims can be decided on the administrative record alone, without supplementation.
(Supplementation, if appropriate, will not be completed by the time the first round of summary judgment motions is briefed.)
Defendants and Intervenors rejoin that it is not yet possible to determine whether a decision on the RPA claims will require supplementation of the record.
On July 7, 2009, the Scheduling Conference Order was amended to permit the parties to "present their RPA claims with the early disposition claims." Doc. 133. at 2. Defendants and Defendant Intervenors were permitted to "argue that the Administrative Record is incomplete and that RPA issues are not ripe for decision." Id.
The parties requested further clarification of the order, Docs. 135 & 138, and a further scheduling conference was convened on July 10, 2009. The following clarifying language suggested by the parties, with a minor modification, is adopted:
be heard with early dispositive motions are to be the early disposition claims. RPA claims that are to The moving parties may present their RPA claims with limited to facial challenges that address whether the issues. necessity of a determination of disputed factual requirements of the law have been met, without the
The scheduling order is SO AMENDED.
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