FOR APPEAL NINTH CIRCUIT CASE NO: 11-15871
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
(1:09-cv-00407 OWW DLB) (1:09-cv-00422-OWW-GSA) (1:09-cv-00480- OWW-GSA) (1:09-cv-00631- OWW-DLB) (1:09-cv-00892-OWW-DLB) 1:09-cv-01201-OWW-DLB
MEMORANDUM DECISION AND ORDER RE DEFENDANT INTERVENOR/ APPELLANTS' CERTIFICATION RE TRANSCRIPTS NECESSARY
Partially consolidated with:
On April 7, 2011, Defendant-Intervenors Natural Resources Defense Council and The Bay Institute ("Appellants") filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit in this action. Doc. 853. The following day, Federal Defendants filed a motion to alter or amend the judgment, Doc. 856, which stayed the deadlines for the appeal until its resolution on May 4, 2011, Doc. 875.
Pursuant to Circuit Rule 10-3.1(a), Appellants notified the parties on May 16, 2011 that they intended to order the following district court transcripts (or portions thereof) for the appeal:
(1)October 2, 2009 hearing on cross-motions for summary judgment;
(2)October 19, 2009 hearing on motions to supplement the administrative record and motions to allow expert testimony;
(3)April 2 & 5-7, 2010 hearing on motion for preliminary injunction; and
(4)July 8-9, 2010 hearing on cross-motions for summary judgment.
Doc. 891-1 at 1 ("Transcript Notice").
The Transcript Notice lists the following as the issues Appellants intend to pursue on appeal:
(1)Whether the district court erred in considering extra-record evidence in challenges to the 2008 biological opinion for the delta smelt under the Endangered Species Act [("ESA")] and Administrative Procedure Act [("APA")]?
(2)Whether the district court erred in determining that the U.S. Fish & Wildlife Service failed to rely on the best available science or that the 2008 biological opinion for the delta smelt was otherwise arbitrary and capricious under the [ESA] and [APA]?
(3)Whether the district court erred in determining that the U.S. Bureau of Reclamation was required to conduct environmental review of the 2008 biological opinion for the delta smelt under the National Environmental Policy Act [("NEPA")] prior to provisionally adopting and implementing the biological opinion?
On May 26, 2011, Plaintiffs State Water Contractors, Coalition for a Sustainable Delta, Kern County Water Agency, the Metropolitan Water District of Southern California, San Luis & Delta-Mendota Water Authority, and Westlands Water District ("Water Agency Appellees") responded to the Transcript Notice pursuant to Circuit Rule 10-3.1(b), arguing that "[t]o paint an undistorted picture of the district court's proceedings, the transcripts for all of the approximately thirty-five hearing dates conducted by the trial court are necessary to the appeal for the purpose of assisting the Court with an effective ...