Oceana, Inc. v. Gutierrez

• Court: District Court, District of Columbia
• Decided: October 12, 2012
• Docket: Civil Action No. 2008-1881
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) OCEANA, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1881 (PLF) ) REBECCA M. BLANK, ) Acting Secretary, United States Department ) of Commerce,1 et al., ) ) Defendants, ) __________________________________________) ) FISHERIES SURVIVAL FUND, ) ) Defendant-Intervenor. ) __________________________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Oceana, Inc. (“Oceana”) initiated this lawsuit on October 31, 2008 to

challenge the legality of a March 2008 biological opinion issued by the Defendant National

Marine Fisheries Service (“NMFS”) relating to the impact of the Atlantic sea scallop fishery

management plan on the loggerhead sea turtle population. After the NMFS reinitiated

consultation under Section 7 of the Endangered Species Act to develop an updated biological

decision, this Court granted NMFS’s March 8, 2012 motion to stay the proceedings pending

revision of the biological decision at issue in this case. See Memorandum Opinion and Order,

March 22, 2012, Docket No. 73.

1 The Court has substituted acting Secretary of Commerce Rebecca M. Blank as a defendant in place of former Secretary John Bryson pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Oceana, NMFS, and Defendant-Intervenor Fisheries Survival Fund filed a joint

status report on July 26, 2012, Docket No. 75, advising the Court that counsel for NMFS had

distributed to all parties the revised biological opinion for the Atlantic sea scallop fishery

management plan. All parties appear to agree that it is appropriate for the action to proceed, and

that Oceana should be permitted to amend its complaint to include claims related to the 2012

Biological Opinion. Oceana and NMFS propose similar briefing schedules, although Oceana and

NMFS disagree as to the proper timing of the filing of the Supplemental Administrative Record.

The Court finds that it is appropriate for the Federal Defendants to postpone production of the

Supplemental Administrative Record until after the parties have had an opportunity to engage in

settlement discussions following submission of the amended complaint and answers.

Accordingly, it is hereby

ORDERED that the parties show cause why the court’s stay order should not be

lifted; and it is

FURTHER ORDERED that the parties show cause why the following briefing

schedule should not be set as follows:

1. Plaintiff file its First Amended Complaint on or before November 5, 2012.

2. Federal Defendants and Defendant-Intervenor file Answers to Plaintiff’s

First Amended Complaint on or before November 19, 2012.

3. Federal Defendants file the Supplemental Administrative Record for the

2012 Biological Opinion on or before December 19, 2012.

4. Plaintiff file its Amended Motion for Summary Judgment on or before

January 28, 2013.

2 5. Federal Defendants and Defendant-Intervenor each file their Combined

Opposition to Plaintiff’s Amended Motion for Summary Judgment and Amended Cross-Motions

for Summary Judgment (each party files its own Opposition and Cross-Motion not to exceed 45

pages) on or before February 27, 2013.

6. Plaintiff file its combined reply in support of its Amended Motion for

Summary Judgment and Opposition to Federal Defendants’ and Defendant-Intervenor’s

Amended Motions for Summary Judgment (not to exceed 30 pages) on or before March 19,

2013.

7. Federal Defendants and Defendant-Intervenor file Replies in support of

their Amended Cross-Motions for Summary Judgment (each party files its own Reply not to

exceed 15 pages) on or before April 3, 2013.

8. Plaintiff file the parties’ Joint Appendix of Record Documents on or

before April 23, 2013.

SO ORDERED.

/s/_______________________ PAUL L. FRIEDMAN DATE: October 12, 2012 United States District Judge