United States District Court, D. Nevada
CAVANAUGH-BILL Cavanaugh-Bill Law Offices, LLC
LAKEWOOD MICHAEL SAUL Attorneys for Plaintiffs Center for
Biological Diversity and Sierra Club
PLAINTIFFS' NOTICE OF MOTION AND MOTION TO EXTEND
THE TIME FOR PLAINTIFFS TO CHALLENGE THE CONTENT AND SCOPE OF
THE ADMINISTRATIVE RECORD; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF
Center for Biological Diversity, et al. will and hereby do
move for an order extending the deadline for Plaintiffs to
file a motion challenging the content and scope of the
administrative record. This Motion is based on this Notice of
Motion, the attached Memorandum of Points and Authorities,
the declaration of Clare Lakewood, all pleadings and papers
filed in this action, and such oral and documentary evidence
as may be presented at the hearing on this matter. For the
foregoing reasons, Plaintiffs respectfully request that the
Court order that their deadline to file a motion challenging
the content and scope of the administrative record be
extended to May 24, 2018.
OF POINTS AND AUTHORITIES
Center for Biological Diversity and Sierra Club
(“Plaintiffs”) respectfully request that this
Court extend by two weeks the deadline for challenging the
content and scope of the administrative record, set out in
paragraph 2 of the Revised Joint Case Management Statement
filed March 30, 2018 (ECF No. 23, p. 3). Plaintiffs'
current deadline for challenging the record is April 27, 2018
and they request an extension until May 24, 2018.
the Administrative Procedure Act, “the court shall
review the whole record or those parts of it cited by a
party.” 5 U.S.C. § 706. “[T]he whole record
is not necessarily those documents that the agency has
compiled and submitted as ‘the' administrative
record, [but, rather, ] the court must look to all the
evidence that was before the decisionmaking body.”
Public Power Council v. Johnson, 674 F.2d 791, 794
(9th Cir. 1982) See also Envtl. Defense Fund v.
Blum, 458 F.Supp. 650, 661 (D.D.C. 1978) (improper
“to exclude from consideration pertinent material
submitted as an integral part of the rulemaking process or
otherwise located in EPA's own files” even if
agency did not rely on it).
lodged an administrative record with the Court on April 13,
2018. A large number of documents forming part of the record
in this case were not included in that administrative record.
The omitted documents were various scientific studies,
reports, white papers, newspaper articles and other documents
cited in comment letters and protests Plaintiffs provided to
Defendants. Ex. A, Declr. of C. Lakewood (Apr. 27, 2018).
Defendants have agreed that any documents provided by
Plaintiffs to Defendants before the decisions challenged in
this case properly form part of the record, and have agreed
to lodge a supplement with the Court.
despite extensive conferral by telephone and by e-mail,
parties have been unable to agree on a further revision to
the Revised Joint Case Management Statement to preserve
Plaintiffs' right to challenge the content and scope of
the administrative record after the supplement is lodged. The
current Revised Joint Case Management Statement provides
Plaintiffs with two weeks from the lodgment of the
administrative record to review and prepare any challenge to
the administrative record.
understanding that Defendants intend to lodge the supplement
by May 9, Plaintiffs seek an extension of the deadline for
challenging the content and scope of the administrative
record or notice that Plaintiffs do not challenge the content
and scope of the administrative record, of two weeks from May
9, 2018, being May 23, 2018.
two-week extension mirrors the two-week period parties agreed
for Plaintiff to challenge the record under the current
Revised Case Management Statement. It will ensure that
Plaintiffs have sufficient time to review the record in its
entirety, and preserves their right to complete or supplement
the record. This in turn ensures that this Court has before
it all materials that were before the decisionmaker when it
made its decisions, and that Plaintiff can fully argue its
case by reference to those materials; while aiding the
parties to resolve outstanding issues with the administrative
record without further orders from the court. The two-week
extension requested will not delay resolution of the matter,
as the briefing schedules set out in the Revised Case
Management Statement otherwise remains unaltered.
for Defendants has indicated that Defendants does not oppose
Plaintiffs' motion to extend the time for ...