Opinion
No. CV 01-640-RE.
November 2, 2005
OPINION AND ORDER
On October 7, 2005, I ordered remand of the 2004 Biological Opinion (2004BiOp) issued by defendant National Marine Fisheries Service (NOAA). Plaintiffs advised they would be filing certain motions for interim injunctive relief regarding flow and spill issues similar to previous motions filed in this litigation. On the earlier motions, I granted injunctions following the submission of briefs and expert declarations, as well as oral arguments. The parties submitted approximately 48 expert declarations for the June 2005 injunction proceeding alone.
In my remand order, I asked the parties to submit proposals regarding the scope of the remand, including the nature and extent of hearings on the motions for interim relief. The federal defendants and others proposed an evidentiary hearing. Other parties, not the federal defendants, recommended an expert or panel of experts under Fed.R.Evid. 706. The expert(s)' task would be to arrive at findings based on the declarations filed by the parties and, if an evidentiary hearing were to be held, the scientific evidence introduced on flow and spill measures.
On October 12, 2005, I held a conference with the parties and amici to discuss how the proceedings should be conducted. I was inclined to hold a 2-day evidentiary hearing as requested by some of the parties. I suggested limits to the number of experts to be presented by the parties, as well as the number and length of the expert declarations. I also recommended page limits for the briefs to be submitted. I also suggested limits on the scope of direct and cross-examination, which would accommodate the 2-day evidentiary hearing. The parties raised no specific objections.
I also discussed with the parties the concept of securing the assistance of an expert(s) under Fed.R.Evid. 706(a). I asked David Leith, counsel for the State of Oregon, to contact the Independent Scientific Advisory Board (ISAB) for recommended qualified experts.
The ISAB is comprised of experts who have been effective in addressing salmon related issues in other federal litigation in Oregon and Washington, including United States v. Oregon. The ISAB's response to Mr. Leith's inquiry is Attachment 1 to this opinion. The court appreciates the work done by Mr. Leith and the ISAB, and regrets that a panel of such experts was rendered impracticable at this juncture.
As a follow-up to the October 12th conference, in my order of October 17, 2005, I allowed an evidentiary hearing, and set limits for briefs, declarations, and cross-examination. The order is Attachment 2 to this opinion. The order allowed the parties and amici to submit comments on or before October 26, 2005.
Many, including intervenor-defendants Inland Ports, Kootenai Tribe, BPA Customers; Treaty Tribes; and the States of Oregon, Washington, Idaho, and Montana, commented on the October 17th order, seeking clarification of the order regarding the groupings of the parties and limitations on arguments and expert declarations, as well as examination of witnesses based on those groupings. Those responses are Attachments 3 through 9 to this opinion. These parties wanted to insure that each would be able to adequately present their arguments. They pointed out that their positions were not necessarily aligned. A number of the responses, in effect, have asked the court to rank the parties and amici as to the levels of their importance and impose limitations in accordance with the rankings.
Evidentiary Hearing
In the past, the court has not held evidentiary hearings, but rather relied on written "dueling declarations" of experts. An evidentiary hearing would have allowed cross-examination of the declarant experts.
The federal defendants' response to the October 17th order made it clear that it would be impracticable, if not impossible, to conduct an evidentiary hearing within the 2-day time period. The federal defendants assert that the restrictions on length of declarations are inappropriate, and must be expanded. They demand a "witness regarding the scope and feasibility of the relief sought, including whether the relief sought is narrowly tailored to redress alleged irreparable harm to the species." See Attachment 4, p. 5.
They also challenge the time limits agreed to by others for cross-examination of the declarant experts. They also ask that the court "clarify the role of amici," and demand that amici not be given the same considerations as "formal parties." They also seek "clarifications" regarding the various tribes, including the Treaty Tribes, the Kootenai Tribes and, most recently, the Spokane Tribe of Indians.
The BPA Customer Group likewise seeks clarification and/or modifications which go beyond the purpose of an evidentiary hearing. See Attachment 5.
Appointment of Expert under Fed.R.Evid. 706
The federal defendants' response to the October 17th order is adamant in their objections to appointment of a Rule 706(a) expert(s). The federal defendants would require Rule 706(a) expert(s) to submit to the court and the parties, by November 15, 2005, a curriculum vitae; a list of other proceedings in which he/she has testified; copies of all reports or declarations submitted; identities of academic or other relationships with the court's technical advisor; and a list of any employment or financial benefit obtained from any party or amici in this case. Federal defendants demand that the experts would be deposed, in addition to being cross-examined. Unfortunately, given these demands and conditions, the court cannot proceed within the schedule urged by the parties. My order of November 1, 2005 declining to appoint a Rule 706(a) expert is Attachment 10 to this opinion.
The federal defendants do point out that I am familiar with the issues that are presented by the plaintiffs' motion regarding interim operations. They point out that I did not express any problem in understanding the issues in prior motions, and was able to resolve those issues previously. I agree. I did understand, with the assistance of the court's technical advisor, Dr. Howard Horton.
Other Issues
The federal defendants have agreed to repeat the presentation made to the parties on flow augmentation issues on September 29, 2005. I agree with the federal defendants regarding the manner in which the presentation will be conducted. The federal defendants have scheduled the presentation for November 22, 2005. I will attend with Dr. Horton and two law clerks.Earlier, counsel for the federal defendants agreed to arrange for me to observe a removable spillway weir. I have heard nothing in this regard, and urge the federal defendants to arrange a visit prior to the oral argument scheduled for December 15, 2005.
Conclusion
Therefore, the court vacates the October 17th order and ORDERS as follows:
1. The evidentiary hearing set for December 12 and 13, 2005, is stricken.
2. The court will hear oral arguments on the legal issues raised by the motions on December 15, 2005, beginning a 9:00 a.m.
3. Responses to plaintiffs' motion for an injunction filed on November 1, 2005, and any filings by amici, are due November 18, 2005. Replies are due December 2, 2005.
4. There shall be no court-imposed page limits for legal memoranda nor limits on the number or length of declarations. Because plaintiffs and the Treaty Tribes filed material on November 1, in accordance with the previously-set schedule, they may supplement their filings with additional memoranda and/or declarations if they wish.
I initially was inclined to eliminate page limits for declarations, but not for legal memoranda. However, a November 2, 2005, letter to the court from counsel for the federal defendants, responding to plaintiffs' comments on the draft order (Attachment 3), indicates that any attempt by this court to impose page limits will be met continually with claims of inequity and disadvantage vis-a-vis other parties. Federal defendants' November 2nd letter is Attachment 11 to this opinion.
5. The court declines to appoint an expert or panel of experts under Fed.R.Evid. 706.
6. The court will continue to use the services of its technical advisor. Compensation for the technical advisor will be addressed in an opinion and order to follow.
IT IS SO ORDERED.
ATTACHMENT 1
Memorandum October 27, 2005
To: David Leith, Attorney for the State of Oregon
Subject: List of Potential Court-Appointed Experts for NWF v. NOAA
From: Independent Scientific Advisory Board
At the direction of the United States District Court of Oregon, the Independent Scientific Advisory Board (ISAB) provides a list of scientists who are qualified and willing to provide expertise to the Court. The ISAB developed this list with the understanding that the Court requested scientists who are neutral and have expertise in the science and efficacy of spill, transportation, and flow augmentation in assisting juvenile salmon pass through the dams during the spring and summer. In addition, the ISAB confirmed with the scientists named on the list that they would be willing to serve, be subject to cross-examination, and be able to evaluate the testimony of the parties' experts at a December 12 and 13, 2005 evidentiary hearing on anticipated motions for interim relief during the remand period for the Federal Columbia River Power System Biological Opinion. The scientists named are also aware that the Court will decide whether to appoint an expert or a panel of experts.
The ISAB generated this list internally and agreed not to consider names provided from external sources or to communicate with the parties or amici to the lawsuit during the selection process. This exclusion included the ISAB Ex Officio representatives from the National Marine Fisheries Service, Columbia River Inter-Tribal Fish Commission, and the Northwest Power and Conservation Council; they did not participate in ISAB deliberations on this matter.
The ISAB strongly recommends that the Court use a panel of three or more scientists instead of a single expert. The technical considerations of this lawsuit are very complex and no single scientist has comprehensive knowledge of all facets of the issues. A panel of scientists with complementary expertise would provide a broader perspective on the information presented at the upcoming hearing. The ISAB frequently uses small subcommittees consisting of a balanced mix of experts in various disciplines, and this approach has proven effective. For example, when reviewing a large mainstem Columbia River survival study, the ISAB Mainstem Subcommittee might be comprised of members having expertise in biostatistics, fisheries modeling, fish behavior, life history diversity, and hydrosystem passage. Rarely does one scientist have depth of expertise in all of these disciplines. If a panel were used, the ISAB would recommend that as a minimum the panel include one member having expertise in Columbia Basin hydrosystem/fish passage and another with expertise in biostatistical analysis/modeling.
In compiling the following list of recommended experts, the ISAB considered past Independent Scientific Review Panel (ISRP) and ISAB members, scientists recently recommended for potential appointment to the ISAB or ISRP by the National Research Council, the approximately 140 scientists on the ISRP's Peer Review Group list, and other scientists of whom ISAB members have knowledge through the scientific literature, professional societies, and work in the Columbia River Basin. Neutrality was the most restrictive criterion applied. The ISAB ruled out many scientists with significant applicable expertise because even the perception of conflicting interest or bias was considered cause for elimination from the list. For example, many capable scientists were not named to the list because: they worked for one of the parties in the case, had a direct funding connection to one of the parties, might have their research or statistical analysis under review at the evidentiary hearing, or had made strong public statements on issues related to the case that could be perceived as advocacy for a position of one of the parties.
Although the ISAB seriously considered many scientists who have not served on the ISAB and ISRP, the ISAB's final recommended list includes only former members. These scientists are uniquely positioned to serve the Court. They have a balance of a comprehensive knowledge of the science at issue while also being neutral because of their distance from the primary research and analysis used to develop the Biological Opinion. In addition, these scientists were recommended by the National Research Council to provide independent scientific review in the Columbia River Basin and have demonstrated their ability to effectively serve in that capacity.
Fish Passage, hydrosystem
Biostatistical analysis and mathematical modeling
• Charles Coutant, Ph.D., Distinguished Research Ecologist, Oak Ridge National Laboratory, Oak Ridge, Tennessee (retired), past president of the American Fisheries Society, with expertise in fish-habitat relationships.
• Richard Whitney, Ph.D., consulting fisheries scientist, Leavenworth, Washington, formerly a professor in the School of Fisheries, University of Washington.
• Daniel Goodman, Ph.D., Professor of statistics at Montana State University, an expert in ecological risk assessment.
• Lyman McDonald, Ph.D., consulting statistician at Western Ecosystems Tech., Inc., Cheyenne, Wyoming, formerly a professor at the University of Wyoming.
• Brian Riddell, Ph.D., Division Head, Salmon and Freshwater Ecosystems, Science Branch, Department of Fisheries and Oceans Canada, Nanaimo, British Columbia, an expert in the biology of Pacific salmon and salmon management. He would be willing to serve as part of a panel that included a person more expert in biostatistical analysis and modeling as applied to flow and downstream survival studies in the Columbia River. While Dr. Riddell has experience in these areas from his past involvement with the ISAB and ISRP, he would need to extensively review that material. Dr. Riddell noted significant time commitments over the next month and a half, but if a panel process is selected, he will endeavor to thoroughly review declarations and other background material in advance of the hearing.
• James Lichatowich, M.S., Consulting Fisheries and Aquatic Scientist, author of Salmon Without Rivers, formerly Assistant Chief of Fisheries, Oregon Department of Fish and Wildlife, and a past ISAB and ISRP chair. He would be willing to serve as part of a panel that included a person more expert in biostatistical analysis and modeling and if he was not expected to provide expertise in those areas. His willingness to serve would also be contingent on the time commitment and compensation.
ATTACHMENT 2 CIVIL MINUTES
Case No.: CV01-640-RE Date of Proceeding: October 17, 2005Case Title: NWF v. NOAA
Presiding Judge: JAMES A. REDDEN Courtroom Deputy: Linda Greyerbiehl/sh
Reporter: None Tape No: ____
DOCKET ENTRY:
Record of Order:
The court has considered the arguments of counsel regarding the hearing and use of experts on anticipated motions for interim relief during the remand period, and ORDERS as follows:
The court shall hold an evidentiary hearing on all motions for interim relief on December 12 and 13, 2005, beginning at 9:00 a.m. The hearing shall be limited to the testimony and cross-examination of expert witnesses on behalf of the parties and amici. Oral argument on the motions shall be held on December 15, 2005, beginning a 9:00 a.m.
Motions and supporting/opposing memoranda of Plaintiffs, Federal Defendants, the States, and the Tribes, as groupings, shall not exceed 20 pages. All motions shall be filed no later than November 1, 2005. Opposing memoranda shall be filed no later than November 18, 2005. The remaining intervenor parties and amici may file memoranda not to exceed 10 pages supporting or opposing the motions no later than November 18, 2005; reply memoranda shall be filed no later than December 2, 2005, and shall not exceed 5 pages.
Plaintiffs, Federal Defendants, the States, and the Tribes, as groupings, may each present testimony of two expert witnesses at the hearing. The remaining intervenors and amici may present a total of two experts to testify, one in favor of the motions, and one opposed to the motions.
Each grouping of parties and amici shall also be entitled to present expert declarations from non-testifying expert witnesses.
The declarations of testifying and non-testifying experts on behalf of each of the Plaintiff, Federal Defendant, State, and Tribe groupings shall be limited 50 pages of substantive testimony, excluding exhibits and curricula vitae. The declarations of testifying and non-testifying experts on behalf of the remaining intervenors and amici supporting or opposing motions shall be limited to 25 pages of substantive testimony, excluding exhibits and curricula vitae.
The parties shall consider stipulating to the qualifications of all testifying experts prior to the evidentiary hearing. The topics to be addressed in the hearing shall be limited to the science and efficacy of spill/transportation and flow augmentation to assist juvenile salmon pass through the dams during the spring and summer runs.
At the evidentiary hearing, each testifying expert shall state his or her opinion and briefly summarize the basis of the opinion. Opposing parties shall agree on one attorney to conduct cross-examination. At the conclusion of a cross-examination, the questioner may confer with others aligned to determine if further questions are necessary. Cross-examination of each expert shall be limited to 40 minutes, followed by an additional 10 minutes for follow-up questions after conference with aligned counsel.
On or before October 27, 2005, the State of Oregon's attorney of record, David Leith, shall contact the Independent Science Advisory Board to obtain and report to the court and all counsel of record the names of proposed experts regarding issues that may be addressed in the motions who are neutral and who may be willing to serve pursuant to Fed.R.Evid. 706 in a panel of court-appointed experts, or alone, for purposes of evaluating the testimony at the evidentiary hearing. The "706 Expert(s)" shall be subject to cross-examination in the manner described for the parties' experts.
The court will decide whether to appoint an expert of panel of experts no later than November 1, 2005.
The parties and amici may respond to this minute order on or before October 26, 2005, by an email to james_redden@ord.uscourts.gov and all other parties and amici, or by faxing to 503-326-8379 and all other parties and amici.
PLAINTIFF'S COUNSEL DEFENDANT'S COUNSEL
____________________________________________________________ ____________________ ____________________ ____________________ ____________________ ____________________ ____________________ ___________________________________________________________
DOCUMENT NO:____
Civil Minutes Revised 4/23/91 Honorable James A. Redden
CIVIL MINUTES
Attachment 3
October 21, 2005 Via Facsimile and E-mailThe Honorable James A. Redden United States District Court Judge District of Oregon
1527 U.S. Courthouse 1000 S.W. Third Avenue Portland, OR 97204-2902
Re: NWF v. NMFS, No. 01-640-RE (D. Or.) — Response to Minute Order re Injunction Hearing
Dear Judge Redden:
This letter is a brief response by the plaintiffs, National Wildlife Federation et al., to the Court's Minute Order of October 17, 2005, regarding the timing and structure of proceedings on a motion for interim relief.
NWF would respectfully ask the Court to modify its Order to allow NWF to allocate the total of 25 pages of legal memoranda the Court has allowed NWF between its opening and its reply memorandum as NWF determines is most efficient to present its request for interim relief. Likewise, NWF would ask the Court to allow NWF, as the moving party seeking interim relief, a total of 75 pages of expert declarations in support of its motion, again to be allocated between its opening papers and its reply as NWF believes will most effectively present its case to the Court.
These changes would not increase the overall number of pages of briefs for NWF under the Court's Order but would increase the number of pages for expert declarations from a total of 50 to a total of 75. NWF believes this modification of the Order is appropriate because: (1) as the moving party, NWF bears the burden on any request for interim relief and will submit both opening and reply papers; (2) in each of the past injunction motions, the defendants and other parties have filed expert declarations opposing NWF's requests for relief that raised issues that could be effectively addressed in reply briefs and declarations; and, (3) allowing NWF to allocate a limited number of pages to a reply brief and declarations will better focus and sharpen the issues that need to be addressed at the evidentiary hearing the Court has set.
Although the Court asked the parties to respond to its Minute Order on or before October 26, 2005, NWF is providing these comments now because it is in the process of preparing its motion for interim relief and would like to have the Court's guidance on the issues raised above.
Thank you for this opportunity to respond to the Court's Order.
Sincerely,
Todd D. True Stephen D. Mashuda Attorneys for Plaintiffs
cc: All counsel of record
Attachment 4
KARIN J. IMMERGUT, OSB #96314 United States Attorney STEPHEN J. ODELL, OSB #90353 Assistant United States Attorney District of Oregon 600 United States Courthouse 1000 S.W. Third Avenue Portland, OR 97204-2902 (503) 727-1000
KELLY A. JOHNSON Acting Assistant Attorney General ROBERT L. GULLEY, Senior Trial Attorney robert.gulley@usdoj.gov RUTH ANN LOWERY, Trial Attorney COBY HOWELL, Trial Attorney Wildlife Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, DC 20044-7369 (202) 305-0500 (ph) (202) 305-0275 (fx)Attorneys for Defendants
UNITED STATES DISTRICT COURT DISTRICT OF OREGON
________________________________________ NATIONAL WILDLIFE FEDERATION, et al. Civil No. 01-640-RE Plaintiffs, FEDERAL DEFENDANTS' v. RESPONSE TO CIVIL MINUTE NATIONAL MARINE FISHERIES ORDER SERVICE, et al. Defendants.
________________________________________
Federal Defendants submit the following response to the Court's Civil Minute Order dated October 17, 2005 (Dkt. 286):
1. Federal Defendants Object To The Appointment Of An Expert Under Fed.R.Evid. 706(a).
Federal Defendants do not believe a Rule 706 expert is needed in this case. The Court is familiar with the issues that will be presented by Plaintiffs' motion regarding interim operations. Moreover, the Court did not express any problem in understanding or being able to resolve those same issues previously. Further, the Court will have the ability to hear live testimony and cross examination of the experts and even to ask questions of the experts if it would be helpful for the Court to better understand the issues. In addition, as we discussed in our prior comments on this issue, Federal Defendants continue to question whether in fact any expert available for appointment can be truly "neutral."
Indeed, some of the materials of the ISAB itself addresses some of the key issues that will be relevant in the upcoming preliminary injunction proceedings. See, e.g., Independent Scientific Advisory Board for the Northwest Power Planning Council, Review of Flow Augmentation: Update and Clarification, February 10, 2003, at 3 ("The prevailing flow-augmentation paradigm, which asserts that in-river smolt survival will be proportionally enhanced by any amount of added water, is no longer supportable. It does not agree with information now available."); id. at 33 (rejecting the Fish Passage Center findings on the issue as "inadequate to make confident predictions").
Further, the time available does not allow for the use of a Rule 706 expert in the manner required by Fed.R.Evid. 706(a). The Court states that the purpose in retaining such an expert would be to "evaluat[e] the testimony at the evidentiary hearing." Rule 706, however, requires that the witness must "advise the parties of the witness' findings." See In re Joint Eastern and Southern Dist. Asbestos Litig., 151 F.R.D. 540, 545 (E.D.N.Y. 1993) ("[a]ll parties are entitled to receive the fullest practicable disclosure from the 706 Panel"). Moreover, the parties have the right to depose the witness. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311 n. 10 (11th Cir. 1999) ("FRE 706 requires the experts . . . are subject to depositions. . . .") (citing Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1392 n. 8 (D. Or. 1996)); Wright Miller, 29 Fed. Prac. Proc. Evid. § 6303 ("Rule 706(a) recognizes the right to depose court-appointed experts."). The schedule simply does not allow time for the expert to advise the parties of his/her findings and for the parties to have a meaningful opportunity to depose and cross examine the witness.
2. If The Court Were To Appoint A 706 Expert Over Federal Defendants' And Plaintiffs' Objections, The Court Should Ensure That The Use Of That Expert Strictly Complies With The Requirements Of Fed.R.Evid. 706 And Impose Other Requirements To Ensure A Fair And Effective Process.
If the Court were to appoint an expert over the objections of Plaintiffs and Federal Defendants, it should set out a schedule that provides for meaningful compliance with the requirements of Fed.R.Evid. 706, and establish the following requirements:
a. To preserve the expert's neutrality, the expert should not be allowed to have ex parte contacts with the parties, amici, or the Court's technical advisor;
b. The Court should not have ex parte communications with the expert witness except with regard to procedural matters. See, e.g., Imazio Nursery, Inc. v. Greenhouses, Civ. No. 92-20755 SW, 1997 WL 195434 at *6 (N.D. Cal. Apr. 16, 1997);
c. The expert should (1) submit to the Court and the parties by November 15, 2005, a curriculum vitae, (2) provide the parties a list of other proceedings in which he/she has testified along with copies of all reports or declarations submitted in any such proceeding, (3) identify any academic or other relationship with the Court's technical advisor, and (4) provide a list of any employment or financial benefit obtained from any party or amici in the case;
d. If a panel of experts were employed, each expert should be required to provide his/her findings, and be deposed and cross-examined; and
e. The cost of the expert(s) should be borne on a per capita basis by all parties and amici.
In providing these suggestions, Federal Defendants do not diminish their objection to the appointment or consent to that appointment.
3. The Court Should Not Unreasonably Limit The Presentation of Relevant Evidence.
The draft minute order will prejudice Federal Defendants' ability to present relevant evidence by sharply restricting the length of the declarations that can be submitted with their brief in opposition to Plaintiffs' motion for injunctive relief and the number of witnesses at the evidentiary hearing. The biological effects of spill, flow, and transportation are not issues that can be adequately laid out for the Court in an abbreviated manner. Moreover, equally important will be issues of feasibility of the relief requested. The Defendants should be afforded an opportunity to explain these issues in sufficient detail to enable the Court to make informed judgments. Further, the relief which Plaintiffs will likely seek will have extensive system-wide implications which will need to be presented. Because the Court has so far indicated the scope of the evidentiary hearing will be limited to only a narrow range of issues, the declarations that the Federal Defendants will submit with their briefs may ultimately be the only mechanism for ensuring that the relevant evidence is put before the Court.
Moreover, the Court should not foreclose the possibility of cross-examination of additional witnesses beyond the two initially identified by the respective groups of parties, if a party can establish that additional examination is warranted on the basis of the declarations filed with the briefs.
The Court's draft minute order sends a clear message to the parties and amici to focus their presentation of evidence to the Court. No need exists to go beyond that message by setting an unduly restrictive limit on of the length of the declarations and prejudicing the parties' ability to create a complete record to assist the Court in considering Plaintiffs' motion.
4. The Court Should Not Limit The Topics That Can Be Addressed In The Hearing.
The Court has directed that the hearing be limited to "the science and the efficacy of spill/transportation and flow augmentation to assist juvenile salmon pass through the dams during the spring and summer runs." Federal Defendants agree that these are important issues and should be a substantial part of the focus of the hearing. Nonetheless, because this Court also must ensure that any relief it provides is "narrowly tailored," Nat'l Wildlife Fed'n v. NMFS, 422 F.3d 782, 800 (9th Cir. 2005), Federal Defendants should also be allowed to present a witness regarding the scope and feasibility of the relief sought, including whether the relief sought is narrowly tailored to redress alleged irreparable harm to the species. Moreover, to the extent that a witness' declaration raises issues beyond the scope set out in the draft minute order, Federal Defendants should not be prohibited from examining the witness on that testimony.
5. The Court Should Allow For Meaningful Cross-Examination Regarding The Issues Raised By The Witnesses.
Fifty minutes is not adequate time for cross-examination of each witness. The time allowed should be adequate to allow a full exploration of the issues raised by the witness. We suggest instead that the Court set as a guideline that the initial cross-examination be limited to one hour and that any follow-up examination be limited to 15 minutes. The Court can make clear that it may adjust that time if the questioning is inefficient or unproductive or if additional time will assist the Court in understanding a particular issue.
6. The Court Should Allow Counsel For The Federal Defendants An Opportunity To Cross Examine All Opposing Witnesses At The Hearing.
The draft minute order requires the opposing parties "to agree" on one attorney to conduct cross-examination. While Federal Defendants believe that the parties aligned with them in opposing Plaintiffs' injunction should be afforded an opportunity to cross-examine opposing witnesses, the fundamental reality is that Plaintiffs' motion for interim relief will be directed to Federal Defendants. It is their operations that will be affected by any order granting such a motion, and it will be their obligation to carry out any order. Thus, Federal Defendants should be afforded an opportunity to examine each opposing witness presented at the hearing, and should not be required to obtain the consent of other parties before doing so. While another party may oppose the injunction, that party may not share the same understanding of the logistical and biological issues as NOAA and the other expert agencies, nor may their interests be fully aligned with the interests of the Action Agencies.
Accordingly, the Court should direct that counsel for Federal Defendants conduct the initial cross-examination of the opposing witnesses unless they opt to delegate the task to counsel for another party. Federal Defendants will work with the other opposing parties to ensure to the extent possible the initial cross examination covers the areas of concern to those parties. To ensure that the other parties also have an opportunity to have their questions asked, Defendants suggest that the Court allow one counsel for the parties opposing the motion to conduct the follow-up cross-examination.
7. The Court Should Clarify The Role Of Amici.
The entities participating in this case as amici made a decision not to seek party status and, thus, not to be bound by the Court's judgment in this case. Amici are rarely given the same prerogatives regarding participation in a case as formal parties. Miller-Wohl Co. v. Comm'r of Labor and Indus., 694 F.2d 203, 204 (9th Cir. 1982). An amicus curiae has no control over the litigation, Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), and no right to institute any proceedings or file any pleadings or motions in the case. NGV Gaming, Ltd v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1068 (N.D. Cal. 2005). Further, an amicus' role is limited to "responding to the issues presented by the parties. An amicus cannot initiate, create, extend, or enlarge issues." United States v. Alkaabi, 223 F. Supp. 2d 583, 593 n. 19 (D.N.J. 2002) (quoting Waste Mgmt. of Pa., Inc. v. City of New York, 162 F.R.D. 34, 36 (M.D. Pa. 1995)); High Sierra Hikers Ass'n v. Powell, 150 F. Supp. 2d 1023, 1045 (N.D. Cal. 2001), aff'd in part, reversed in part on other grounds, 390 F.3d 630 (9th Cir. 2004) ("Amici are not parties . . . [they] cannot introduce evidence.").
Accordingly, while the amici can submit briefs in support of a motion for interlocutory relief, the Court should clarify that amici cannot themselves file a motion seeking interim relief and that any briefs filed by amici should be limited to issues raised in Plaintiffs' motion. American Rivers v. Oregon, Civ. No. 96-384-MA, 1997 WL 33797790 at *3 (D. Or. April 3, 1997) (refusing to consider arguments of amicus curiae that go beyond the issues raised by the parties). Similarly, while the Court may have the discretion to allow amici to submit declarations in support of or opposing interim relief and to participate in the evidentiary hearing, the Court should make clear that, in so doing, amici are not allowed to create new issues, or extend or enlarge on the issues presented.
8. The Court Should Clarify That The Term "Tribes" As Used In The Minute Order Includes The Kootenai Tribes Of Idaho.
The Kootenai Tribes of Idaho are sovereigns just like the other tribes in this case. To ensure that no confusion exists, the Court should expressly provide that the term "Tribe" as used in the Minute Order includes the Kootenai Tribes of Idaho.
9. Flow Presentation
Although the Court did not address it in its proposed minute order, during the telephonic conference on October 12, 2005, the Court asked Federal Defendants to present to the Court the factual information discussed at the flow meeting held on September 29, 2005. The Court asked Federal Defendants for a date on which they could make the presentation. It is our understanding from that call that the Court was interested in hearing "just the facts" regarding the current operations of the dams and did not intend to get into the potential issues in Plaintiffs' upcoming motion for an injunction. Federal Defendants further understand that the Court would not allow the other parties and amici to examine the persons making the presentations. Federal Defendants propose that such a presentation be held on November 22, 2005. Federal Defendants also request that a court reporter make a transcript of the presentation and that the presentation be included in the record of the case.
At the September 29 flow symposium, the Tribes and the State of Montana presented specific proposals on possible alternative operations. These proposals were "opinions" rather than facts describing current operations, and, as such, will be unavoidably implicated in the upcoming injunction. Federal Defendants do not believe that the presentation for the Court should include those proposals; rather, they should be addressed, if at all, in the upcoming adversarial process. See, e.g., United States v. Bonds, 18 F.3d 1327, 1331 (6th Cir. 1993) (cautioning against a judge attending conferences that serve as a "pre-screening of evidentiary matters to be presented to the court.").
RESPECTFULLY SUBMITTED,
KELLY A. JOHNSON Acting Assistant Attorney General
/s/ Robert L. Gulley ROBERT L. GULLEY Senior Trial Attorney RUTH ANN LOWERY COBY HOWELL Trial Attorneys Wildlife Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, DC 20044-7369 (202) 305-0217 (ph) (202) 305-0275 (fx) Attorneys for Defendants
Attachment 5
BETH S. GINSBERG Direct (206) 386-7581 October 26, 2005 bsginsberg@stoel.com
VIA ELECTRONIC TRANSMISSION
Judge James A. Redden Mark O. Hatfield U.S. Courthouse
1000 S.W. Third Avenue Portland, OR 97204-2902
Re: Minute Order Establishing Evidentiary Hearing and Process Limitations in NWF v. NOAA; Civil Case No.: CV 01-640-RE
Dear Judge Redden:
The BPA Customer Group ("the Customers") seeks clarification and/or modification of the October 17, 2005 Minute Order establishing the procedure this Court intends to utilize for the upcoming interim operations evidentiary proceeding. Clarification is necessary because it is unclear whether the Court has required the individual members of each "grouping" of parties to work collaboratively with other members of the particular grouping to file a single memorandum, and to otherwise share in the page limits set forth for supporting declarations. If that is this indeed Court's intent, then the Customers respectfully request that the Court modify the Order to allow each party to file its own memorandum with supporting declarations for the reasons set forth below. To ease the burden imposed on the Court as a result of additional briefing, the Customers suggest that the Court allow each non-sovereign intervenor a total of 10 pages for its memorandum, and an additional 15 pages in supporting declarations.
The rationale for our request is as follows: first, individual members within a grouping are not necessarily aligned with and do not necessarily hold the same viewpoint as the other members within a particular grouping. This is particularly the case for the private parties. The Inland Navigation Group, the Farm Bureau, and the Golf Course, and the Irrigators each have separate and at times divergent interests from those held by the Customers, which cannot be reconciled in a single brief and a shared set of declarations.
Second, the Customers sought intervention early on in this case because no other party to the case adequately represented its unique interests and views on the issues now before the Court. Indeed, the Customers have a statutory right under the Northwest Power Act to participate in the resolution of the issues that will be addressed in the upcoming evidentiary hearing, including but not limited to development of regional plans for the protection, enhancement, and mitigation of anadromous fish. 16 U.S.C. § 839(3) and (6). For these and related reasons, this Court has previously decided that the Customers have unique interests that cannot be adequately represented by an existing party to the case. Because these interests could be harmed by the relief sought by the plaintiffs, the Court granted the Customers intervention as of right pursuant to Fed.R.Civ.P. 24(a).
Given that reality, the Customers request that the Court allow each intervenor the right to file its own memorandum and supporting declarations, and the right to separately examine adverse witnesses at the upcoming evidentiary hearing. As currently structured, the Order allows only 1 attorney the right to cross examine a witness on behalf of all other entities similarly aligned either in favor of or in opposition to the requested relief. While that attorney must confer with all other counsel representing aligned interests during examination, the Order does not grant other counsel the right to question witnesses. This effectively undermines the Customers' due process right to confront an adverse witness and to be meaningfully heard in a proceeding as important as this, as recognized by 16 U.S.C. § 839(3) and (6) and the Administrative Procedure Act.
While it would be ideal for each intervenor to be allocated a set amount of time per witness for cross examination purposes, the Customers recognize that the Court's time is not unlimited, and that such a proposal could prove unworkable in a case with as many involved parties. For these reasons, the Customers respectfully request that the Court set aside an additional fifteen minutes per side to be used among counsel for aligned parties to cross examine any witness, with the understanding that such time need not be used by the parties merely because it is available.
The Customers clearly appreciate the Court's objective of running the proceeding in a time efficient manner and recognize that some compromise is therefore required on the part of all parties. Accordingly, the Customers intend to coordinate to the maximum extent possible with other aligned parties in both briefing and in actual trial examination, to avoid any unnecessary repetition or redundancies and in the interests of judicial economy. Nonetheless, without some, albeit limited, ability to cross examine hostile witnesses, the parties to this case would be deprived of their inherent right to participate meaningfully in a critical proceeding that has the potential to result in an injunction that could seriously impair their legally protectable interests.
Very truly yours,
/s/ Beth S. Ginsberg
Beth S. Ginsberg
cc: All counsel of record Via Email
Attachment 6
STATE OF IDAHO OFFICE OF THE ATTORNEY GENERAL LAWRENCE G. WASDEN October 26, 2005
Hon. James A. Redden United States District Judge U.S. Courthouse
1000 SW Third Avenue Portland, OR 97204
Re: National Wildlife Federation v. NMFS, No. CV 01-640-RE (D, Or.)
Dear Judge Redden:
This letter responds on behalf of the States of Idaho, Montana, Oregon and Washington to the draft scheduling order distributed on October 17, 2005. It has been simultaneously faxed to your chambers and forwarded electronically to other counsel and Dr. Horton.
As an introductory matter, the States extend their appreciation to the Court for the opportunity to comment on the scheduling order. That approach should assist materially in arriving at a process that satisfies the twin objectives of efficiency and fairness.
The States suggest two modifications that address their particular interests. First, as mentioned during the October 12, 2005 status conference, there may be differences among the States with respect to the most appropriate manner of addressing issues raised by the Plaintiffs' anticipated preliminary injunction motion. So, for example, flow augmentation regimes that the Plaintiffs may seek will not affect all States similarly, and individual States therefore will likely desire to submit declarations focused on their unique concerns. There may also be discrete legal issues associated with the provision of flow augmentation from particular States. With these considerations in mind, the States request that the proposed procedure for the filing of a single brief limited to 20 pages and declarations limited to 50 pages for the States as a group be modified to the following:
• Each State may file a brief in response to the preliminary injunction motion of no more than 15 pages.
• Each State may file declaration(s) not to exceed 15 pages in the aggregate with the exclusions specified in the draft order.
• If two or more States determine to file a joint brief and declarations ( i.e., a joint response), (1) the maximum brief length will be 20 pages regardless of the number of States joining in the response and (2) the maximum number of declaration pages will be 15 times the number of States joining in the response.
Although the States' suggested modification increases somewhat the potential aggregate length of briefs and declarations, they do not believe that the increase disproportionately disadvantages other parties. While the States are mindful of the additional burden this places on the court, they hope the court will agree that the incremental addition is warranted under the circumstances.
Second, the States recommend that the proposed scheduling order provide that declarations may address whatever matters are relevant to the issues posed by the motion for injunctive relief. They additionally recommend that the order be modified to provide that the topics to be addressed at the hearing should similarly be limited to technical or scientific issues that are relevant to the relief being sought. This recommendation is made to ensure that the range of issues is not unnecessarily limited. As one example, last summer's spill proposal was ultimately modified to address impacts to returning adult spawners. The States' recommendation simply seeks to clarify that the court's proposal to limit the hearing to "the efficacy of spill/transportation and flow augmentation to assist juvenile pass[age] through dams during the spring and summer runs" does not apply the concept of efficacy in a manner that would preclude consideration of impacts to returning adult salmon or other listed species within the Columbia River Basin.
Thank you again for the opportunity to submit these comments.
Sincerely,
CLAY R. SMITH Deputy Attorney General
CRS/ay
Attachment 7
October 26, 2005
VIA FACSIMILE AND EMAIL
The Honorable James A. Redden U.S. District Court
1000 S.W. Third Avenue Portland, OR 97204
Re: National Wildlife Federation et al v. NMFS et al U.S. District Court Case No. 01-640-JAR
Dear Judge Redden:
On behalf of the Kootenai Tribe of Idaho (the "Kootenai Tribe"), this letter responds to the Court's invitation for the parties to provide written comments on its October 17, 2005 minute order. As explained below, the Kootenai Tribe seeks clarification regarding the Court's use of the phrase "Plaintiffs, Federal Defendants, the States, and the Tribes, as groupings."
First, the Kootenai Tribe seeks clarification as to whether it, as an upriver Tribe whose protectable interests likely are in direct conflict with those of other, down-river Tribes involved in this lawsuit, will be required to file a joint brief with the other Tribes. Although it is the Kootenai Tribe's hope that it will be able to join in the filings of other parties with similar interests, to the extent that is not possible, the Kootenai Tribe respectfully requests that it be allowed to file its own memorandum in response to the motion(s) for interim relief, not to exceed 15 pages.
Second, for the same reason stated above, the Kootenai Tribe seeks clarification as to whether the Court envisions that "the Tribes," as a collective group, will either reach agreement as to two expert witnesses to testify at the hearing or reach agreement regarding splitting the two experts allocated to "the Tribes" in some fashion — perhaps one in support of the motion(s) for interim relief, the other opposed to such motion(s).
Third, for the same reason stated above, the Kootenai Tribe seeks clarification as to whether it will be allowed to present its own expert declaration from a non-testifying expert witness in the event that its interests are not fully represented by other parties' declarants, and, in a related vein, whether the Court envisions that "the Tribes," as a collective group, will reach agreement as to how to divide the 50 pages of substantive testimony allocated to that grouping, despite their divergent interests.
Respectfully submitted,
Julie A. Weis, William K. Barquin
For defendant-intervenor, the Kootenai Tribe of Idaho
JAW:cmj cc: Service list (via email)
Attachment 8
Honorable James A. Redden Mark O. Hatfield U.S. Courthouse
1000 S.W. Third Avenue Portland, OR 97204-2902
Re: NWF v. NMFS, Response to Minute Order Docket #1089 Case #: CV-01-640-RE
Dear Judge Redden:
The Columbia River Treaty Tribes (Nez Perce Tribe, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes and Bands of the Yakama Indian Nation, and the Confederated Tribes and Bands of the Warm Springs Reservation of Oregon) believe this Court provided clear directions to the parties to this case regarding the upcoming injunction proceeding during the October 12, 2005 status conference (Docket #1090), and that is reflected in this Court's October 17, 2005 minute order (Docket #1089). Thus, while the Columbia River Treaty Tribes fully support the Plaintiffs' request to ensure that there is adequate opportunity for reply declarations, the Columbia River Treaty Tribes had not intended to file a separate response to the procedures set forth in this Court' minute order. However, the Federal Defendants' "Response to Civil Minute Order" (Docket #1099) which urges this Court to "clarify the role of amici" and "clarify that the term 'tribes as used in the minute order includes the Kootenai Tribes of Idaho" necessitates this response.
The Treaty Tribes are concerned by the clarifications urged by the Federal Defendants.
First, this Court has already exercised its discretion to allow the Columbia River Treaty Tribes to participate in this case as amicus curiae. This Court has also addressed the role that the Columbia River Treaty Tribes will play in this case in holding that:
The Court also notes the Tribes [Nez Perce, Yakama, Umatilla, and Warm Springs], in one form or another, have been involved in FCRPS endangered species issues for many years. It would be counterproductive to exclude them from meaningful participation in this case, which includes the ability to present both legal arguments and extra-record materials that are of assistance to the Court and that fall within the limited scope of the court's judicial review under the APA.
Docket #112. The Treaty Tribes, throughout the 4½ year history of their extensive participation in this case, have not sought to create or litigate new issues that have not been raised by the plaintiffs. Thus, there is no need to "clarify" the Treaty Tribes' amici participation any further.
Second, there is a critical legal distinction between the Columbia River Treaty Tribes and the other tribes in the Columbia River Basin. The Columbia River Treaty Tribes do not take issue with the sovereignty of any of these other tribes. However, each tribe has unique legal status, unique legal rights, and unique legal authority. Counsel for the United States suggests that "To ensure that no confusion exists, the Court should expressly provide that the term "Tribe" as used in the Minute Order includes the Kootenai Tribes of Idaho." (Fed. Defs' Rsp. at 7-8). Each of the Columbia River Treaty Tribes expressly reserved, in their "Stevens" treaties with the United States, the substantially identical right "to take fish at all usual and accustomed places." See Treaty with the Nez Perces, Article III, 12 Stat. 957. The Columbia River Treaty Tribes' rights have been upheld repeatedly by the United States Supreme Court, and are the subject of the United States District Court's continuing jurisdiction in U.S. v. Oregon, CV #68-513. These treaty-reserved rights are the basis for the Columbia River Treaty Tribes' participation in this case for the last 4½ years. There is no basis in the law for treating the unique legal rights and interests of the Columbia River Treaty Tribes the same as those of other tribes in the Basin.
The practical effect of the Federal Defendants' suggestion would be to limit and restrict the Court's review of the biological expertise and views of the four Columbia River Treaty Tribes.
The Columbia River Treaty Tribes do not take issue with participation by the Kootenai Tribe of Idaho, so long as this does not affect the Columbia River Treaty Tribes' ability to "present testimony of two expert witnesses," to file an opening brief not to exceed 20 pages, a reply not to exceed 5 pages, and to file declarations not to exceed 50 pages.
Thank you for considering the Columbia River Treaty Tribes' views.
Respectfully submitted, _______________________________ _______________________________________ David J. Cummings Howard G. Arnett Attorney for Nez Perce Tribe Attorney for Confederated Tribes of the Warm Springs Reservation of Oregon _______________________________ _______________________________________ Christopher B. Leahy Timothy R. Weaver Attorney for Confederated Tribes of the Confederated Tribes and Bands of the Umatilla Indian Reservation Yakama Indian NationAttachment 9
Pacwest Center, 1211 SW 5th Ave., Suite 1900, Portland, OR 97204 | Phone 503-222-9981 | Fax 503-796-2900 | www.schwabe.com
JAY T. WALDRON Direct Line: (503) 796-2945 E-Mail: jwaldron@schwabe.com
October 26, 2005
Judge James A. Redden Mark O. Hatfield U.S. Courthouse
1000 S.W. Third Avenue Portland, OR 97204-2902
Re: Minute Order Establishing Evidentiary Hearing and Process Limitations in NWF v. NOAA; Civil Case No.: CV 01-640-RE
Dear Judge Redden:
The Inland Ports and Navigation Group appreciates the opportunity to request two clarifications to your draft minute order relating to procedures planned for the two days of evidentiary hearings in December in the Bio Op case, NWF v. NOAA, Civil Case No.: CV 01-640-RE.
We read your proposed limit for written declarations of intervenor and amici parties to mean that "not to exceed 10 pages supporting or opposing the motions" means that the limit applied to each intervenor or amici party, respectively. We are aware that one could conclude that the court was telling all intervenors and amici to collaborate and agree on a joint ten page submission from all such parties. Although generally aligned with one side or the other, we hope the Court will recognize the differences among the intervenors and amici and not require all parties to agree upon a single submission. We respectfully request that the Court clarify this matter.
Our second request for clarification asks the same question of the length of the declarations for testifying or non-testifying experts. We hope our reading of this is correct when we read it as each intervenor or amici must meet the 25-page length, notall parties supporting or opposing the motion to agree on asingle 25-page submission. We respectfully request the Court to clarify this matter.
Thank you for your consideration of this request.
Sincerely,
Jay T. Waldron
JTW:fap
Attachment 10
U.S. District Court District of Oregon
Notice of Electronic Filing
The following transaction was received from lg, entered on 11/1/2005 at 9:44 AM PST and filed on 11/1/2005
Case Name: National Wildlife Federation et al v. National Marine Fisheries Service et al
Case Number: 3:01-cv-640
Filer:
Document Number: 1108
Docket Text:
Record of Order. The court declines to appoint a Rule 706 expert. The reasons for this decision, together with final directions as to the briefing and argument on motions regarding interim operations, will be contained in an opinion to be issued this week. Ordered by Judge James A. Redden.Associated Cases: 3:01-cv-00640-RE,3:05-cv-00023-RE (lg,)
The following document(s) are associated with this transaction:
3:01-cv-640 Notice will be electronically mailed to:
Howard G. Arnett hga@karnopp.com,
William K. Barquin Wbarquin@hk-law.com, prentz@hk-law.com
Laurie K. Beale lkbeale@stoel.com,
James L. Buchal jbuchal@mbllp.com, ccaldwell@mbllp.com
Karen J. Budd-Falen karen@buddfalen.com
Barbara D. Craig bdcraig@stoel.com, docketclerk@stoel.com, rlhein@stoel.com
David J. Cummings djc@nezperce.org, lpicard@nezperce.org
Michael R. Eitel michael.eitel@usdoj.gov,
Beth S. Ginsberg bsginsberg@stoel.com, djautrey@stoel.com; sea_docket@stoel.com
Michael S. Grossmann MikeG1@atg.wa.gov, fwdef@atg.wa.gov
Robert Lee Gulley Robert. Gulley@usdoj.gov,
Daniel W. Hester dhester@fphw.com,
Elizabeth E. Howard ehoward@churchill-law.com, ncommerford@churchill-law.com
Coby Healy Howell coby.howell@usdoj.gov, sandra.hart@usdoj.gov
Robert N. Lane blane@state.mt.us,
Christopher B. Leahy cleahy@fphw.com,
Attachment 11
November 2, 2005
The Honorable James A. Redden United States District Court Judge District of Oregon
1527 U.S. Courthouse 1000 S.W. Third Avenue Portland, Or. 97204-2902
Re: NWF v. NMFS, No 01-640-RE (D. Or.) — Response to Plaintiffs' Response to Minute order
Dear Judge Redden:
On October 26, 2005, Federal Defendants filed their comments on the Court's proposed minute order. The purpose of this letter is not to supplement those comments but to respond to Plaintiffs' request that they be allowed to submit 75 pages of declarations. Plaintiffs have now filed a 20 page declaration of Robert Heinith and relied extensively on the 23 page declaration of Thomas Lorz that was filed by the Treaty Tribes.
Federal Defendants believe the 50-page restriction that the Court placed on the declarations, at Plaintiffs' suggestion, see Transcript, October 12 hearing at 28, unduly restricts Federal Defendants' ability to present their case, but it, at least, in theory should disadvantage equally with the Plaintiffs. That would not be the case, if Plaintiffs were allowed 75 pages for their declaration. Further, Plaintiffs' request for additional pages disadvantages Federal Defendants because it will allow Plaintiffs over 55 pages for declarations to purportedly "reply" to Federal Defendants' opposition. If the Court were to adhere to its draft minute order, Federal Defendants will not have an opportunity to rebut these declarations except through 50 minutes of cross-examination at the evidentiary hearing, and then only if Plaintiffs identify the "reply" declarants as a witnesses.
Plaintiffs' request for additional pages is simply inequitable and should be rejected. Consistent with our comments, we continued to believe that the Court should not limit the number of declaration pages the Federal Defendants think necessary to prevent their case; however, if the Court were to set a limit, we ask the Court to set the same limit for the Federal Defendants as it does for the Plaintiffs.
Sincerely,
Robert L. Gulley Counsel for Federal Defendants