ROBERT G. DREHER, Acting Assistant Attorney General Environment & Natural Resources Division, MARK A. NITCZYNSKI (CSB 20687), U.S. Department of Justice/ENRD, Denver, CO, Attorney for Defendants.
BRIAN A. KNUTSEN, Smith & Lowney, P.L.L.C., Seattle, Washington, Attorney for Plaintiff.
STIPULATION TO STAY PROCEEDINGS PENDING RESOLUTION OF MOTION TO TRANSFER AND CONSOLIDATE
RONALD B. LEIGHTON, District Judge.
Plaintiff and Defendants (collectively, "Parties") have conferred and hereby stipulate and request, pursuant to LCR 7(d)(1) and 10(g), that the Court stay all proceedings, including the filing of Defendants' response to the Complaint and all remaining deadlines established pursuant to Judge Creatura's Order Regarding Initial Disclosures, Joint Status Report, and Early Settlement (Dkt. No. 6), pending final action by the United States Judicial Panel on Multidistrict Litigation ("the Panel") regarding Plaintiff's Motion to Transfer and Consolidate Under 28 U.S.C. § 1407 (MDL No. 2494, Dkt. No. 1) ("Motion to Transfer"). See Dkt. No. 8.
In support of this Stipulation and request, the Parties state as follows:
1. On July 31, 2013, Plaintiff filed the Complaint (Dkt. No. 1) in the above-captioned action, alleging that the portion of the Bonneville Dam located in the State of Washington discharges pollutants in violation of section 301(a) of the Clean Water Act ("CWA"), 33 U.S.C. § 1311(a).
2. Also on July 31, 2013, Plaintiff filed related complaints in the District of Oregon and the Eastern District of Washington, similarly alleging that dams or portions of dams located in those districts discharge pollutants in violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a).
3. Specifically, the complaint filed in the District of Oregon addressed alleged discharges from portions of the Bonneville, John Day and McNary dams; the complaint filed in the Eastern District of Washington addressed alleged discharges from The Dalles, Ice Harbor, Lower Monumental, Little Goose and Lower Granite dams, and also addressed alleged discharges from portions of the John Day and McNary dams.
4. Plaintiff seeks similar relief regarding each of the dams addressed in the three cases.
5. The complaints in the three cases allege that subject matter jurisdiction exists under, inter alia, CWA section 505(c), 33 U.S.C. § 1365(c), which provides that "[a]ny action respecting a violation by a discharge source of an effluent standard or limitation... may be brought under this section only in the judicial district in which such source is located. " (Emphasis added.)
6. On September 12, 2013, Plaintiff filed the Motion to Transfer, in which Plaintiff seeks centralization of the three cases under 28 U.S.C. § 1407, and suggests that the cases be assigned to Judge Simon in the District of Oregon.
7. Defendants' response to Plaintiff's Motion is due on or before November 1, 2013. Defendants do not plan to contest centralization of the cases under 28 U.S.C. § 1407, but are evaluating what the most appropriate forum would be.
8. Plaintiff's reply in support of the Motion to Transfer is due on or before November 8, 2013, and oral argument before the Judicial Panel on Multidistrict Litigation is scheduled for December 5, 2013.
9. In the instant case, Defendants' response to the Complaint currently is due on October 24, 2013, the Parties' deadline to conduct the FRCP 26(f) conference is November 8, 2013, the Parties' initial disclosures deadline is November 15, 2013, and the Parties' joint status report is ...