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Friends of River v. United States Army Corps of Engineers

United States District Court, Ninth Circuit

October 15, 2013

FRIENDS OF THE RIVER, DEFENDERS OF WILDLIFE, and CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

Robert G. Dreher, Assistant Attorney General, Devon Lehman McCune, Trial Attorney, John H. Martin, Trial Attorney, U.S. Department of Justice, Environment and Natural Resources Division, Denver, CO, Attorneys for Defendants.

John H. Martin, Trial Attorney, U.S. Department of Justice, Environment and Natural Resources Division, Wildlife and Marine Resources Section, Denver, CO, Attorneys for Defendants.

Jason Rylander (Pro hac vice), Defenders of Wildlife, Washington D.C.

E. Robert Wright (CA Bar No 51861), Senior Counsel, Sacramento, California.

Lisa T. Belenky (CA Bar No. 203225), D. Adam Lazar (CA Bar No. 237485), Center for Biological Diversity, San Francisco, CA, Attorneys for Plaintiffs.

STIPULATION AND PROPOSED ORDER FOR STAY OF DEADLINE TO FILE ADMINISTRATIVE RECORD IN LIGHT OF LAPSE OF APPROPRIATIONS

ALLISON CLAIRE, District Judge.

The United States of America hereby requests that this Court enter this stipulation for a stay of Defendants' deadline to file the administrative record in the above-captioned case.

1. On September 12, 2013, Magistrate Judge Claire issued an order providing that the United States Army Corps of Engineers (the "Corps") shall produce the complete and final administrative record no later than October 31, 2013. ECF No. 82. This Order provides that "[m]odification to the October 31, 2013 deadline shall be made only for extraordinary circum-stances." Id.

2. At the end of the day on September 30, 2013, the appropriations act that had been funding the Department of Justice expired and appropriations to the Department lapsed. The same is true for most Executive agencies, including the Corps. The Corps is currently able to continue limited operations for specified purposes using prior year, non-expiring appropriations, primarily for civil works activities. Those prior year appropriations are limited and will be ex-hausted at some point. The Department does not know when funding will be restored by Con-gress.

3. Absent an appropriation, Department of Justice attorneys and employees of the Corps are prohibited from working, even on a voluntary basis, except in very limited circum-stances, including "emergencies involving the safety of human life or the protection of proper-ty." 31 U.S.C. ยง 1342.

4. While the Corps has endeavored to continue working toward production of the record, Department of Justice employees have been unable to assist in the production due to the lapse of appropriations. It is also possible that the Corps attorneys currently working on the ad-ministrative record will be furloughed in the near future due to the lapse of appropriations.

5. Although the administrative record is not due to be filed until October 31, 2013, there are certain internal deadlines before that date that must be met, including review of the privilege log and privileged documents and quality control checks, in order for the record to be produced on October 31, 2013.

6. Undersigned counsel for the Department of Justice therefore requests a stay of the deadline to file the administrative record until Congress has restored appropriations to the De-partment. The parties have stipulated that such a stay would be appropriate, given the circum-stances.

7. If this stipulation for a stay is granted, undersigned counsel will notify the Court as soon as Congress has appropriated funds for the Department. The Government requests that, at that point, all current deadlines for the parties be extended commensurate with the duration of the lapse in appropriations.

Therefore, although we greatly regret any disruption caused to the Court and the other lit-igants, the Government hereby moves and the parties stipulate that a stay of the deadline to file the administrative record in this case should be issued until Department of Justice attorneys are permitted to resume their usual civil litigation functions.

IT IS SO ORDERED.


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