Case 2:19-cv-01062-RAJ-JRC Document 19 Filed 10/16/19 Page 1 of 7

1 District Judge Richard A. Jones

7 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE

9
CITIZENS OF THE EBEY’S RESERVE
10 FOR A HEALTHY, SAFE AND
PEACEFUL ENVIRONMENT; and NO. 2:19-cv-01062-RAJ-JRC
11 PAULA SPINA,

12 Plaintiffs, PLAINTIFFS’ PROPOSED

SCHEDULE FOR FURTHER
13 v. PROCEEDINGS
14 UNITED STATES DEPARTMENT OF
THE NAVY, a military department of the
15 United States; and TODD C. MELLON,
in his official capacity as Acting Assistant
16 Secretary of the Navy for Energy,
Installations & Environment; and
17 UNITED STATES FISH AND
WILDLIFE SERVICE, an agency of the
18 United States,

19 Defendants.

20
Pursuant to the Court’s Minute Order (Dkt 14), plaintiffs submit this proposal for further
21
proceedings in this case. Plaintiffs and the original defendants (“Navy”) were able to agree to most
22
parts of the schedule. However, there are three issues that remain unresolved:
23

24 Bricklin & Newman, LLP

PLAINTIFFS’ PROPOSED SCHEDULE Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
25 FOR FURTHER PROCEEDINGS -1- Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01062-RAJ-JRC Document 19 Filed 10/16/19 Page 2 of 7

1 1. The Navy proposes that a deadline be set for the plaintiffs to file a motion to seek

2 corrections to or supplementation of the administrative record. Plaintiffs do not agree that

3 deadlines for additions or corrections to the administrative record are necessary or desirable

4 because the parties may discover deficiencies in the record during the course of briefing on

5 summary judgment. The administrative record for this case will be vast. It is unrealistic and

6 unreasonable for the plaintiffs to review the entire record in advance of the briefing to determine

7 whether any particular document is missing. Likewise, until we review the briefs filed by the

8 defendants, we will not be able to make a final determination as to whether the record needs to be

9 supplemented in any way. While motions to adjust the record later in the proceedings may create

10 some administrative problems, those problems should not outweigh the importance of assuring

11 that the Court has a complete administrative record.

12 2. Plaintiffs have the burden of proving their claims under the National Environmental

13 Policy Act (NEPA) (that the Navy’s Environmental Impact Statement is inadequate). Thus,

14 plaintiffs should file the opening brief and have the final word with our reply. Accordingly, we

15 originally proposed a standard summary judgment briefing schedule.

16 The Navy responded that it might file its own motion for summary judgment. It proposed

17 a staggered schedule. Plaintiffs would file an opening brief. The Navy would file a response and

18 cross-motion. Plaintiffs would file a response/reply. And the Navy would get the last word with

19 its filing of a reply brief on its cross-motion.

20 If the Navy’s cross-motion were based on affirmative defenses, we would agree that the

21 Navy should file the opening and reply brief on those affirmative defenses. However, the Navy

22 has explained that it intends to file a summary judgment motion as the flip side of plaintiffs’ motion

23

24 Bricklin & Newman, LLP

PLAINTIFFS’ PROPOSED SCHEDULE Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
25 FOR FURTHER PROCEEDINGS -2- Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01062-RAJ-JRC Document 19 Filed 10/16/19 Page 3 of 7

1 on the merits. Certainly, a defendant who does not have the burden of proof at trial may move for

2 summary judgment. But doing so shifts the burden during motion practice:

3 A moving party without the ultimate burden of persuasion at trial—

usually, but not always, a defendant—has both the initial burden of
4 production and the ultimate burden of persuasion on a motion for
summary judgment. See 10A Charles Alan Wright, Arthur R. Miller
5 and Mary Kay Kane, Federal Practice and Procedure § 2727 (3d
ed.1998). In order to carry its burden of production, the moving
6 party must either produce evidence negating an essential element of
the nonmoving party's claim or defense or show that the nonmoving
7 party does not have enough evidence of an essential element to carry
its ultimate burden of persuasion at trial. See High Tech Gays v.
8 Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th
Cir.1990). In order to carry its ultimate burden of persuasion on the
9 motion, the moving party must persuade the court that there is no
genuine issue of material fact. See id.
10
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
11
We asked the Navy if it would agree that if it files an opening brief and the last brief on the
12
merits of our NEPA claim that it would be subject to the burden of proof rules set forth in Nissan.
13
The Navy would not agree. Instead, the Navy offered that it would limit its reply to addressing
14
issues raised in our response to their cross-motion. But because the Navy’s cross-motion will
15
presumably cover the gamut of our NEPA claims, our response will be equally broad and, thus,
16
the supposed limitation will not be a meaningful limitation at all. The net result of the Navy’s
17
proposal is that despite plaintiffs having the ultimate burden of proof, the Navy will get the last
18
word in the briefing. This is unfair and the reason the parties have been unable to agree on a
19
briefing schedule.
20
As a compromise, we offered concurrent briefing. Both sides would file concurrent
21
opening, response and reply briefs. While this would not provide plaintiffs with the last word in
22

23

24 Bricklin & Newman, LLP

PLAINTIFFS’ PROPOSED SCHEDULE Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
25 FOR FURTHER PROCEEDINGS -3- Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01062-RAJ-JRC Document 19 Filed 10/16/19 Page 4 of 7

1 the briefing, at least the Navy would not have the sole last word, either. The Navy rejected that

2 compromise.

3 3. On October 11, 2019, plaintiffs filed their amended complaint (Dkt. 16), which

4 adds the United States Fish and Wildlife Service (“the Service”) as an additional defendant and

5 includes allegations and claims for relief regarding defendants’ violations of the federal

6 Endangered Species Act (ESA). Plaintiffs propose that summary judgment briefing on the

7 plaintiffs’ original claims under NEPA and the National Historic Preservation Act (which do not

8 involve the Service) should be on an earlier track than summary judgment briefing on the ESA

9 claims. We propose that, after the Service has entered its appearance, all the parties involved in

10 that new claim confer and attempt to agree upon a separate schedule for briefing summary

11 judgment on the ESA claims. The Navy does not agree and takes the position that briefing on ESA

12 claims should be combined with briefing on other claims under NEPA and the National Historic

13 Preservation Act.

14 Based on the foregoing, plaintiffs propose the following schedule. The deadlines set forth

15 below in Parts A and B of this proposal are not in dispute (but plaintiffs have not included deadlines

16 proposed by the Navy for corrections to or supplementation of the administrative record, as

17 discussed above). The deadlines in Part C track the deadlines for cross-motion briefing proposed

18 by the Navy, but make those deadlines concurrent. The parties are in dispute as to a separate

19 briefing schedule for plaintiffs’ ESA claims in Part D.

20 A. Defendants’ Answer to the Amended Complaint

21 1. Defendants’ answer to plaintiffs’ amended complaint shall be due on or before the

22 sixtieth day after service of amended complaint.

23 B. Submission of the Administrative Record

24 Bricklin & Newman, LLP

PLAINTIFFS’ PROPOSED SCHEDULE Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
25 FOR FURTHER PROCEEDINGS -4- Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01062-RAJ-JRC Document 19 Filed 10/16/19 Page 5 of 7

1 2. On or before January 3, 2020, defendants shall provide plaintiffs with a draft index

2 and copies of the documents defendants propose to include in the administrative

3 record.

4 3. On or before January 17, 2020, the parties shall meet and confer concerning the

5 draft record and shall attempt to address disputes, if any, concerning the

6 completeness or sufficiency of the record.

7 4. Defendants shall then lodge the certified administrative record with the Court on or

8 before January 31, 2020.

9 C. Motions for Summary Judgment

10 5. Any motions for summary judgment on plaintiffs’ claims under the National

11 Environmental Policy Act are due on or before March 31, 2020.

12 6. Responses in opposition to motions for summary judgment on plaintiffs’ claims

13 under NEPA are due on or before May 5, 2020.

14 7. Replies in support of motions for summary judgment on plaintiffs’ claims under

15 NEPA are due on or before June 9, 2020.

16 D. Endangered Species Act Claims

17 8. The parties shall meet and confer and attempt to agree upon a separate schedule for

18 summary judgment briefing on plaintiffs’ Endangered Species Act claims after

19 defendant United States Fish and Wildlife Service has entered an appearance in this

20 case.

21

22

23

24 Bricklin & Newman, LLP

PLAINTIFFS’ PROPOSED SCHEDULE Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
25 FOR FURTHER PROCEEDINGS -5- Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01062-RAJ-JRC Document 19 Filed 10/16/19 Page 6 of 7

1 Respectfully submitted this 16th day of October, 2019.

2 Plaintiffs Citizens of the Ebey’s Reserve for a Healthy,

Safe and Peaceful Environment and Paula Spina, by
3 and through their counsel:

4 BRICKLIN & NEWMAN, LLP

5
By: /s/ David A. Bricklin
6 /s/ Claudia M. Newman
/s/ Zachary K. Griefen
7 David A. Bricklin, WSBA No. 7583
Claudia M. Newman, WSBA No. 24928
8 Zachary K. Griefen, WSBA No. 48608
1424 Fourth Avenue, Suite 500
9 Seattle, WA 98101
Telephone: 206-264-8600
10 Facsimile: 206-264-9300
E-mail: bricklin@bnd-law.com
11 E-mail: newman@bnd-law.com
E-mail: griefen@bnd-law.com
12

13

14

15

16

17

18

19

20

21

22

23

24 Bricklin & Newman, LLP

PLAINTIFFS’ PROPOSED SCHEDULE Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
25 FOR FURTHER PROCEEDINGS -6- Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01062-RAJ-JRC Document 19 Filed 10/16/19 Page 7 of 7

1 CERTIFICATE OF SERVICE

2 I hereby certify that on October 16, 2019, I served a copy of the foregoing on counsel of
record electronically through the court’s CM/ECF system.
3

4 By: /s/ Zachary K. Griefen

Zachary K. Griefen, WSBA No. 48608
5 1424 Fourth Avenue, Suite 500
Seattle, WA 98101
6 Telephone: 206-264-8600
Facsimile: 206-264-9300
7 E-mail: griefen@bnd-law.com

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24 Bricklin & Newman, LLP

PLAINTIFFS’ PROPOSED SCHEDULE Attorneys at Law
1424 Fourth Avenue, Suite 500
Seattle WA 98101
25 FOR FURTHER PROCEEDINGS -7- Tel. (206) 264-8600
Fax. (206) 264-9300