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The Delta Smelt

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION


April 11, 2011

THE DELTA SMELT

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

IGNACIA S. MORENO, Assistant Attorney General United States Department of Justice Environment & Natural Resources Division TOM CLARK, Acting Chief KEITH SAXE, Assistant Chief WILLIAM J. SHAPIRO, Trial Attorney Natural Resources Section SETH M. BARSKY, Chief S. JAY GOVINDAN, Assistant Chief ROBERT P. WILLIAMS, Trial Attorney ETHAN CARSON EDDY, Trial Attorney Wildlife and Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Telephone: (202) 305-0202 / Facsimile: (202) 305-0275 Attorneys for Federal Defendants

Federal Defendants' Application for an Order Shortening Time to Hear Motion To Alter or Amend the Judgment Or In the Alternative For a Stay Declaration of Ethan Carson Eddy Order Shortening Time ted with pdfFactory trial version www.pdffactory.com

CONSOLIDATED CASES

Application for Order Shortening Time

Pursuant to Local Civ. R. 144(e), the Federal Defendants respectfully apply for an order shortening the time to hear their Motion to Alter or Amend the Judgment Or In the Alternative For a Stay (hereinafter "Motion to Amend"), filed concurrently. The undersigned contacted counsel for all parties on April 7, 2011 to obtain their position on this application to shorten time. Counsel for all plaintiffs have indicated that their clients oppose this application. DefendantIntervenors support this application.

The Federal Defendants request that the Court enter an Order in response to this Application providing that any responses to the Motion to Amend be submitted by 5:00pm on Friday, April 15, 2011, that any reply in support of the Motion to Amend be due by 5:00pm on Wednesday, April 20, and that the Motion to Amend be heard at 9:00am on Monday, April 25, 2011, or as soon thereafter as the Court is available to hear it. In the event of a federal government shutdown, Federal Defendants will notify the Court and the parties as soon as possible if an alteration of this proposed schedule is needed.

This Court has authority to shorten the time to hear the Motion to Amend. Rule 6(c) of the Federal Rules of Civil Procedure sets forth the time for hearings on noticed motions "except[ ] . . . when a court order -- which a party may, for good cause, apply for ex parte -- sets a different time." Fed. R. Civ. P. 6(c)(1); see also United States v. Fitch, 472 F.2d 548, 549 n.5 (9th Cir. 1973) (citing former Rule 6(c) and explaining that this rule "allows the district court discretion to shorten time"). The Civil Local Rules for the U.S. District Court for the Eastern District of California recognize this authority, and provide that "applications to shorten time shall set forth by affidavit of counsel the circumstances claimed to justify the issuance of an order shortening time." Local R. 144(e).

Good cause exists for this application. As explained further in the Motion to Amend and supporting declarations filed today, it is impossible for Federal Defendants to comply with the terms of the Court's March 29, 2011 Judgment in this matter, see Docket No. 851, by the deadlines set in that Judgment. Accordingly, Federal Defendants would like to obtain certainty as quickly as possible as to how the agencies must proceed, including relief from the Court of Fed. Defs.' App. for Order Shortening Time 1 Case No. 09-cv-407-OWW ted with pdfFactory trial version www.pdffactory.com

Appeals if necessary, before the deadlines become imminent. If Federal Defendants must seek relief from the deadlines in the Court of Appeals, it would be prejudicial to Federal Defendants to delay the start of that process any longer than absolutely necessary, so as to give the Court of Appeals sufficient time to hear and resolve the matter on a timeframe that would still provide relief to the defendant agencies. Federal Defendants thus respectfully request that the Court exercise the authority granted to it Fed. R. Civ. P. 6(c)(1) and Local Civil Rule 144(e) here and shorten the time by which the Motion to Amend will be briefed and heard.

Declaration of Ethan Carson Eddy

1. I am one of the trial counsel representing the Federal Defendants in this matter. I make this declaration pursuant to Local Rule 144(e).

2. The defendant federal agencies do not believe it is possible for them to comply with the terms of the Court's March 29, 2011 Judgment in this matter, see Docket No. 851, by the deadlines set in that Judgment, as explained in their Motion to Alter or Amend the Judgment Or In the Alternative For a Stay and supporting declarations filed today.

3. The defendant federal agencies seek expedited consideration of that Motion because they need to obtain certainty as quickly as possible as to how they must proceed with the remand, including relief from the Court of Appeals if necessary, before the deadlines in the Judgment become imminent.

4. If the defendant federal agencies must seek relief from the deadlines in the Court of Appeals, it would be prejudicial to their interests to delay the start of that process any longer than absolutely necessary, so as to give the Court of Appeals sufficient time to hear and resolve the matter on a timeframe that would still provide relief to the defendant agencies.

5. On April 7, 2011, I contacted counsel for all parties to the litigation, via electronic mail, to obtain their position on this Application for Order Shortening Time.

6. Counsel for all plaintiffs have indicated that their clients oppose this application. Defendant-Intervenors support this application.

7. I began work on the Motion to Amend, as well as this request for an Order to Shorten Time, as soon as the need became apparent to me.

8. For these reasons, the Federal Defendants respectfully request that the Court enter the proposed Order in response to this Application, affixed below.

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Upon application of the Federal Defendants, and good cause appearing, IT IS HEREBY ORDERED that the time for hearing the Federal Defendants' Motion to Alter or Amend the Judgment Or In the Alternative For a Stay is hereby shortened, and the hearing on said motion shall be on April 22, 2011, at 12:00PM. Any response to that motion shall be filed by 5:00PM on April 15, 2011. Any reply brief shall be filed by 12:00PM on April 20, 2011.

IT IS SO ORDERED.

20110411

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