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Save Strawberry Canyon, A Non- Profit Corporation v. United States Department of Energy

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


April 4, 2011

SAVE STRAWBERRY CANYON, A NON- PROFIT CORPORATION,
PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF ENERGY, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Hon. Judge Elizabeth D. Laporte

Michael R. Lozeau (CA Bar No. 142893) e-mail: michael@lozeaudrury.com Richard T. Drury (CA Bar No. 163559) e-mail: richard@lozeaudrury.com LOZEAU DRURY LLP 410 12th Street, Suite 250 OakLAND, CA 94603 Tel: (510) 836-4200 Fax: (510) 836-4205 Attorneys for Plaintiff

UNITED STATE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

STIPULATION REQUESTING CASE MANAGEMENT SCHEDULE AND REQUIRING 60-DAY NOTICE TO PLAINTIFF PRIOR TO GROUND-DISTURBING ACTIVITY; [PROPOSED] ORDER Hearing: n/a Courtroom: n/a

On March 31, 2011, Plaintiff filed a complaint challenging the Department of Energy's ("DOE's") compliance with the National Environmental Policy Act ("NEPA") in preparing an Environmental Assessment ("EA") for the proposed Computational Research and Theory facility ("CRT") at the DOE's Lawrence Berkeley National Laboratory.

In order to allow expeditious resolution of this action through summary judgment, and to avoid forcing the parties and this Court to expend resources addressing the propriety of preliminary injunctive relief, the parties stipulate as follows:

1. This is a case challenging a decision of the DOE under the Administrative Procedure Act ("APA"), and is appropriately adjudicated through review of the administrative record before the agency on motions for summary judgment without need for discovery or trial.

2. The parties agree to, and respectfully ask the Court to enter, the following schedule for adjudication of this case:

A. Federal Defendants shall file and serve the Administrative Record for the challenged decisions not later than May 2, 2011.

B. 60 days after service of the administrative record, Plaintiffs shall file a Motion for Summary Judgment and brief in support thereof.

C. 30 days after service of the Plaintiffs' Summary Judgment Motion, Federal Defendants shall file one consolidated brief in support of their Cross-Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment.

D. 30 days after service of Federal Defendants' consolidated Cross-Motion and Opposition, Plaintiffs will file one consolidated brief in Opposition to Defendants' Cross-Motion for Summary Judgment and Reply in Support of their Motion for Summary Judgment.

E. 15 days after service of the Plaintiffs' combined Opposition and Reply, Federal Defendants shall file a Reply in Support of their Cross-Motion for Summary Judgment.

F. The parties shall notice a hearing on their cross-motions to be heard 14 calendar days following the submission of the parties' briefs, referenced in subsections BE, above, or as soon thereafter as the Court's motion calendar permits.

3. The schedule set forth above presumes there is no dispute over the adequacy of the administrative record. The parties will work in good faith to informally resolve any issues relating to the content of the administrative record. If such efforts fail, the Plaintiffs shall attempt in good faith to file any motion regarding the adequacy of the administrative record within 30 days after service of the administrative record. To the extent either party learns of any objection it may have to the adequacy of the administrative record after 30 days from service of the administrative record, nothing in this stipulation shall preclude such party from filing a motion to cure any such objection during the course of the briefing schedule set forth above. However, in no event shall any party file a motion regarding the adequacy of the administrative record any later than the brief deadline set forth in Paragraph 2(D) above.

A. Any such motions shall be adjudicated under the timeframes provided by the Local Rules.

B. In the event the parties submit a dispute over the administrative record to the Court within 30 days of service of the administrative record, the parties shall 30 CALENDAR confer and if necessary propose to the court an amended schedule for summary judgment briefing.

4. The parties hope this dispute can be resolved on the merits without the need for proceedings on preliminary injunctive relief. Toward that end, Defendants agree to provide Plaintiffs with no less than 60 days notice before the commencement of any ground-disturbing activities in conjunction with the construction of the CRT building. This excludes preliminary preparatory work, including utility work and supplemental geotechnical investigations, neither of which will alter or disturb the construction site. Plaintiffs agree not to file a motion for Temporary Restraining Order or Preliminary Injunction prior to receiving notice of ground-disturbing activities from Defendants.

E DI T S STRI A CT S

T C

O

D U E R T T I N IT IS SO ORDERED U AS MODIFIED A

I N

N D. Laporte

O Elizabeth R

R Judge

DISTRICT O

*I hereby attest that concurrence in the filing of this document has been obtained by the above-named signatories

PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED:

United States District Court Judge

20110404

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