PAUL MAGNUSON, Senior District Judge
Pursuant to Federal Rule of Civil Procedure 16, and in order to secure the just, speedy and inexpensive determination of this action, the following schedule shall govern these proceedings.
1. The parties have identified the following as the issues that remain for resolution before this Court:
A. Some parties assert that the U.S. Army Corps of Engineers ("Corps") must conform its operations to the Fish and Wildlife Service's ("FWS") 2000 Biological Opinion or otherwise make changes to comply with the Endangered Species Act ("ESA"). Other parties assert that the Corps is barred from so conforming its operations, and/or claim that the Corps is required by the provisions of the 1944 Flood Control Act ("FCA") or the Master Manual to operate the system in a specified manner. Certain parties maintain that the Corps cannot in the 2003 Annual Operating Plan make changes in water releases that shorten the navigation season without following certain procedures under the National Environmental Policy Act and the Administrative Procedure Act.
Certain parties challenge the process and product of the consultations that have occurred between the Corps and the FWS under the ESA. The federal Defendants generally deny all of these claims.
B. In another case, North Dakota claims that the Corps is violating certain obligations in managing the Missouri River related to the Federal Clean Water Act, which the Corps denies.
C. Certain parties claim that the Corps has illegally foiled to propound a revised new Master Manual. The federal Defendants claim that they have no obligation to do so.
2. The parties agree to dispense with the initial disclosures required by Fed.R.Civ.P. 26(a)(1). The parties may not respond to formal discovery requests until November 10, 2003; however, the parties may notice depositions and serve interrogatories prior to this date. All discovery will be completed by March 15, 2004.
3. All motions which seek to amend the pleadings or add parties must be filed on or before November 10, 2003. However, parties will be permitted to amend their Complaints to respond to Government decisions made in conjunction with the Corps' announcement of the 2004 Missouri River operations, and shall do so by March 15, 2004.
4. All other non-dispositive motions, specifically those which relate to discovery and the discovery period, shall be filed and served prior to November 7, 2003, or within two weeks after receipt of the notice or other discovery request, whichever is later.
5. On or before October 1, 2003, the Corps shall make available to all parties so requesting, and shall file with this Court, compact discs containing the administrative records previously submitted in American Rivers, et al. v. United States Army Corps of Engineers, No. 03-24 (D.D.C.), and shall by November 17, 2003 supplement those records with any additional record materials that have been generated since that administrative record was filed on July 8, 2003. All such records shall be filed with the Court no later than November 24, 2003.
6. In North Dakota v. U.S. Army Corps of Engineers, Case No. 03CV-50, the federal Defendants have filed a motion for summary judgment. By November 3, 2003, North Dakota and any other party wishing to respond must file that response and any cross-Motion for summary judgment. The Corps and any party aligned with the Corps must file any reply and any opposition to summary judgment by November 21, 2003.
7. Certain parties in these coordinated actions contend that the Corps cannot legally change the July 1 check point in the Master Manual from 40 million acre feet ("maf") to 52 maf to determine system operations, and to make up for releases in prior seasons, by shortening the navigation season in subsequent years. The Corps denies these claims and may also present affirmative defenses as appropriate if these claims are filed. Movants on these issues must serve all other parties with their motion papers on or before October 22, 2003. The movants shall provide a Notice of Motion to the Court on the date of service, and shall file any such Motions with the Court by November 3, 2003. Responding parties shall have 10 business days from the date of service to serve movants with their response(s). If necessary, the Court will hear oral arguments on such Motions on November 21, 2003, at 9 a.m.
8. Any dispositive or substantive Motions on existing factual circumstances (including cross-Motions for summary judgment), shall be filed no earlier than November 3, 2003, and no later than December 15, 2003. This scheduling Order shall not be interpreted as precluding any defenses, including a Motion to delay the time for response because of ongoing discovery needs in accordance with Rule 56(f). Oppositions to any summary judgment motion shall be due no later than January 19, 2004, or 30 days after such motion is served, and replies no later than February 2, 2004, or 10 days after the opposition is served. Oral argument on any pending summary judgment motions will be scheduled after February 2, 2004.
9. The Corps shall release to the public a decision document outlining its planned operations for 2004 on or before March 1, 2004. This document will be in accord with the new Master Manual, if completed; otherwise, it will be in accord with the existing Master Manual. The Corps will release to the public a draft of the 2004 Annual Operating Plan no later than November 26, 2003.
A. In order for the Court to resolve any challenges to the Corps' proposed Missouri River operations for 2004 by
May 1, 2004, any Motions for a temporary restraining order or injunction regarding the Corps' 2004 Missouri River operations shall be filed no later than
March 15, 2004. Oppositions shall be due no later than
March 31, 2004, or 15 days after such motion is served,
and replies shall be due no later than
April 8, 2004, or 7 days after the opposition is served. The Court will schedule oral arguments on any such motions as soon as possible after
April 8, 2004.
10. The parties shall disclose any experts or other witnesses on whom they plan to rely:
A. By
December 1, 2003, for Motions filed on the existing factual circumstances;
B. By
March 1, 2004, for Motions filed in response to the Corps' proposed plan for 2004 Missouri River operations.
11. The parties have organized themselves into five groups for communication purposes and have designated one attorney from each group to act as the "steering" attorney. When the Court needs to communicate with the parties it may do so through the steering attorneys who will then transmit the Court's communication to the attorneys in their respective groups. The five groups, with their steering attorneys are:
A.
Charles Carvell, steering attorney for Upstream States and Interests (Montana; North Dakota; South Dakota) and the Mandan, Hidasta and Arikara Nation
B.
Robert Vincze, steering attorney for Missouri and the Blaske Marine Plaintiffs (Mo-Ark et al.)
C.
David Cookson, steering attorney for Nebraska, Nebraska Public Power District and Missouri River Energy Services
D.
Fred Disheroon, steering attorney for Federal Agencies and Officials (Corps of Engineers, Fish and Wildlife Services, Sec. Norton, Gen. Grisoli, et al.)
E.
Brian O'Neill, steering attorney for American Rivers Plaintiffs (American
Rivers, Environmental Defense, National Wildlife Federation, et al.)
12. The parties may, by stipulation or motion, move the Court to amend and/or supplement this scheduling Order for good cause shown.
13. All pleadings in these coordinated proceedings shall be served on all parties to all the coordinated proceedings. The parties agree that all parties may be heard by written or oral submission in response to Motions or other papers submitted in any of these coordinated cases whether or not that party has formally intervened in the specific case, subject to objection.
14. The Eight Circuit Court of Appeals' disposition of the en banc appeal of South Dakota v. Ubbelohde may impact this scheduling Order.