Case Detail

FOIA Project Annotation: Ruling in a suit brought by the Ecological Rights Foundation against the EPA, Judge Beryl Howell has indicated that are still some unsettled issues concerning the disclosure of draft statements designed to be used by agency officials to explain a policy to the press or Congress particularly when the prepared statements, for all practical purposes, constitute the final policy of the agency. District court judges in the D.C. Circuit have recently coalesced around finding that such draft statements can qualify for protection under the deliberative process privilege as long as they are both predecisional and deliberative. However, district courts in the Second Circuit have indicated that to the extent that such statements do little more than articulate already-decided policies, they are not deliberative, and, thus, not privileged. ERF requested records concerning former administrator Scott Pruitt and subsequent administrator Andrew Wheeler, particularly concerning the way the agency processed FOIA requests. After conducting a search, the agency made 13 separate productions of records, withholding records under Exemption 5 (privileges), Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records), and Exemption 7(E) (investigative methods or techniques). Instead of directly challenging the adequacy of the agency's search, ERF questioned whether the agency had interpreted its request too narrowly, which, Howell noted, "would necessarily render EPA's search inadequate." The EPA withheld 42 attachments that had been sent to Wheeler as outside the scope of the request because they pre-dated July 5, 2018, the day after Wheeler took over from Pruitt. Howell agreed with the agency that "as EPA correctly points out, by requesting calendar records 'from July 5, 2018 to the present, Part 6 of the FOIA Request 'specifically sought Administrator Wheeler's calendar records since July 5, 2018, the day he became Acting EPA Administrator.' The plain language of the FOIA Request thus unambiguously states that responsive calendar records are those dated July 5, 2018 or later. Plaintiff does not propose an alternative interpretation of Part 6 of its Request, arguing instead that it 'did not agree to forgo challenging [the pre-July 5, 2018 calendar records] at any time during the conferral process with EPA and EPA has provided no basis on which it can withhold these records.' This argument misconstrues EPA's obligations under FOIA. Otherwise-responsive calendar entries and associated attachments dated before July 5, 2018 are squarely outside the scope of the FOIA Request and thus EPA is not required either to release them or to explain its failure to do so. Plaintiff's later representations concerning these records do not alter the limits imposed by the plain text of its Request." Howell found EPA's interpretation of Part 8 of ERF's FOIA request, which requested records related to the preparation of memorandum titled "Awareness Notification Process to Select Freedom of Information Act Releases," did not cover drafts was appropriate because ERF, by including the modifier "to EPA staff" had limited the request. She pointed out that "that phrase may be construed as referring either to final instructions, directives, plans, policies, practices, or memoranda actually disseminated to EPA staff, as EPA suggests, or to any such documents that were intended eventually to be disseminated to EPA staff. The former construction would exclude drafts, the latter would include them. . . The ordinary use and meaning of the phrase weighs slightly in favor of a reading that encompasses only documents that actually were disseminated to EPA staff." She pointed out that "prior drafts of a disseminated document, by definition, do not serve any. . . functions with respect to the final document and therefore do not explain or comment upon the documents sought in Part 8 of the Request." On the issue of draft statements, Howell acknowledged that "a set of talking points or similar document, even if focused on an agency's external presentation of a past policy decision, may fall within the scope of the deliberative process privilege." But she pointed out that "this general principle notwithstanding, the agency's obligation to show that each of its withholdings of records reflecting deliberations about external communications satisfies the exemption's criteria remains." She indicated that "the categorical approach urged by plaintiff to exclude from the deliberative process privilege agency records of talking points, though attractive in its simplicity of application, is an overreach, and the harder job of reviewing each document in context is required." Howell indicated that "talking points that are shared with agency decisionmakers for actual use in making a public statement are disqualified from exemption because they have become final rather than deliberative." She explained that "a talking-points document that is attached to a calendar entry for an event at which an official is expected to speak, or for a scheduled meeting or call, therefore presumptively reflects the agency's final decision as to what information to share and how to share it." She acknowledged that some district court judges in the D.C. Circuit had concluded that such talking points remained privileged "because the official may not stick to the script or may closely follow the talking points without formally adopting their reasoning." Howell traced that conclusion to the recent D.C. Circuit decision in Machado Amadis v. Dept of State, 971 F.3d 364 (D.C. Cir. 2020), which had cited the 1975 Supreme Court decision in Renegotiation Board v. Grumann Aircraft Engineering Corp., 421 U.S. 168 (1975), as holding that records could remain privileged even if there was no explanation of whether or not they had been adopted. However, Howell found the circumstances surrounding the final talking points to be substantively different in kind. She noted that "a rule that deems such records as mere recommendations about what a decisionmaker should say undermines FOIA's larger aims by effectively allowing an agency to withhold all records related to its public communications and protecting even final decisions from public view." She pointed out that "that an agency official might extemporize some portion of her remarks while relying on a final set of talking points does not alter the finality of the agency public relations decisions that the talking points reflect. Final talking points taken up to the podium are the agency's determination of what information should be shared and how to share it. . . Regardless of whether or how they are ultimately used, then, final talking points and similar documents memorialize the agency's final decision about its public relations strategy with regard to a particular event or topic and are therefore neither predecisional nor deliberative."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2019-04-08	1	COMPLAINT against ENVIRONMENTAL PROTECTION AGENCY ( Filing fee $ 400 receipt number 0090-6047629) filed by ECOLOGICAL RIGHTS FOUNDATION. (Attachments: # 1 Exhibit FOIA Request, # 2 Exhibit Civil Cover Sheet, # 3 Summons Attorney General Summons, # 4 Summons Civil Process Clerk Summons, # 5 Summons Environmental Protection Agency Summons)(Wilcox, Stuart) (Entered: 04/08/2019)
2019-04-08	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ECOLOGICAL RIGHTS FOUNDATION. (zef, ) (Entered: 04/09/2019)
2019-04-09	3	ENTERED IN ERROR.....CIVIL COVER SHEET by ECOLOGICAL RIGHTS FOUNDATION re 1 Complaint, filed by ECOLOGICAL RIGHTS FOUNDATION. Related document: 1 Complaint, filed by ECOLOGICAL RIGHTS FOUNDATION.(Wilcox, Stuart) Modified on 4/12/2019; entered in error and refiled as 4 . (znmw). (Entered: 04/09/2019)
2019-04-10	4	CIVIL COVER SHEET by ECOLOGICAL RIGHTS FOUNDATION re 1 Complaint, filed by ECOLOGICAL RIGHTS FOUNDATION. Related document: 1 Complaint, filed by ECOLOGICAL RIGHTS FOUNDATION.(Wilcox, Stuart) (Entered: 04/10/2019)
2019-04-11		Case Assigned to Chief Judge Beryl A. Howell. (zef, ) (Entered: 04/11/2019)
2019-04-11	5	SUMMONS (3) Issued Electronically as to UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 04/11/2019)
2019-04-11	6	STANDING ORDER. Signed by Chief Judge Beryl A. Howell on April 11, 2019.(lcbah3) (Entered: 04/11/2019)
2019-04-15	7	AMENDED COMPLAINT against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY filed by ECOLOGICAL RIGHTS FOUNDATION.(Wilcox, Stuart) (Entered: 04/15/2019)
2019-04-22	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/22/2019. , RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY served on 4/22/2019, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/22/2019. Answer due for ALL FEDERAL DEFENDANTS by 5/22/2019. (Attachments: # 1 Certificate of Service)(Wilcox, Stuart) Modified on 4/22/2019 to add service dates (zrdj). (Entered: 04/22/2019)
2019-05-22	9	NOTICE of Appearance by Derek S. Hammond on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Hammond, Derek) (Entered: 05/22/2019)
2019-05-22	10	ANSWER to 7 Amended Complaint by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.(Hammond, Derek) (Entered: 05/22/2019)
2019-06-05	11	MEET AND CONFER STATEMENT. (Hammond, Derek) (Entered: 06/05/2019)
2019-06-07		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 11 Joint Meet and Confer Report, that, by July 15, 2019, (1) EPA shall "produce to Plaintiff an interim production of non-exempt, responsive records"; and (2) the parties shall submit a joint status report "explaining the status of EPA's searches and production to date" and proposing a schedule to govern further proceedings, including dates for "a final determination, production schedule, and dispositive motions, if any," see 11 Joint Meet and Confer Report ¶ 4. Signed by Chief Judge Beryl A. Howell on June 7, 2019. (lcbah3) (Entered: 06/07/2019)
2019-06-07		Set/Reset Deadlines: EPA's production to plaintiff an interim production of non-exempt, responsive records due by 7/15/2019; Joint Status Report due by 7/15/2019. (tg) (Entered: 06/07/2019)
2019-07-15	12	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Hammond, Derek) (Entered: 07/15/2019)
2019-07-17		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 12 Joint Status Report, the parties to file, by August 14, 2019, a joint status report advising the Court whether any disputes remain between the parties and, if so, a proposed schedule to govern further proceedings. Signed by Chief Judge Beryl A. Howell on July 17, 2019. (lcbah3) (Entered: 07/17/2019)
2019-07-17		Set/Reset Deadlines: Joint Status Report due by 8/14/2019. (tg) (Entered: 07/17/2019)
2019-08-14	13	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Hammond, Derek) (Entered: 08/14/2019)
2019-08-15		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 13 Joint Status Report, the parties to file, by April 27, 2020, a joint status report advising the Court whether any disputes remain between the parties, and if so, a proposed schedule to govern further proceedings. Signed by Chief Judge Beryl A. Howell on August 15, 2019. (lcbah3) (Entered: 08/15/2019)
2019-08-15		Set/Reset Deadlines: Joint Status Report due by 4/27/2020. (tg) (Entered: 08/15/2019)
2020-04-27	14	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Hammond, Derek) (Entered: 04/27/2020)
2020-04-30		MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 14 Joint Status Report, the parties to submit, by June 11, 2020, a joint status report regarding whether any resolution has been reached concerning the defendant's final records production, and, if not, ISSUING the following Scheduling Order to govern the timing of further proceedings in this matter: (1) by July 1, 2020, the defendant shall file its motion for summary judgment and Vaughn index; (2) by July 22, 2020, the plaintiff shall file its combined opposition and cross-motion for summary judgment; (3) by August 12, 2020, the defendant shall file its combined opposition and reply; and (4) by August 26, 2020, the plaintiff shall file its reply. Signed by Chief Judge Beryl A. Howell on April 30, 2020. (lcbah3) (Entered: 04/30/2020)
2020-04-30		Set/Reset Deadlines: Joint status report due by 6/11/2020; defendant's summary judgment motion and Vaughn Index due by 7/1/2020; plaintiff's cross-motion and opposition to motion for summary judgment due by 7/22/2020; defendant's opposition to cross-motion and reply to opposition to motion for summary judgment due by 8/12/2020; plaintiff's reply to opposition to cross-motion due by 8/26/2020. (tg) (Entered: 04/30/2020)
2020-06-11	15	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Hammond, Derek) (Entered: 06/11/2020)
2020-06-22	16	Unopposed MOTION to Modify Briefing Schedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Hammond, Derek) (Entered: 06/22/2020)
2020-06-23		MINUTE ORDER (paperless) GRANTING the defendant's 16 Unopposed Motion to Modify Briefing Schedule, and MODIFYING the Scheduling Order in this case, see Min. Order (Apr. 30, 2020) as follows: (1) by July 10, 2020, the defendant shall produce Administrator Wheeler's responsive, non-exempt calendar attachments; (2) by August 3, 2020, the defendant shall file its motion for summary judgment and Vaughn index; (3) by August 24, 2020, the plaintiff shall file its combined opposition and cross-motion for summary judgment; (4) by September 14, 2020, the defendant shall file its combined opposition and reply; and (5) by October 5, 2020, the plaintiff shall file its reply. Signed by Chief Judge Beryl A. Howell on June 23, 2020. (lcbah3) (Entered: 06/23/2020)
2020-06-24		Set/Reset Deadlines: Defendant's production of Administrator Wheeler's responsive, non-exempt calendar attachments due by 7/10/2020; defendant's Vaughn Index and motion for summary judgment due by 8/3/2020; plaintiff's cross-motion and opposition to defendant's motion for summary judgment due by 8/24/2020; defendant's opposition to cross-motion and reply to opposition to motion for summary judgment due by 9/14/2020; reply to opposition to cross-motion due by 10/5/2020. (ztg) (Entered: 06/24/2020)
2020-07-22	17	NOTICE OF SUBSTITUTION OF COUNSEL by Kathleene A. Molen on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Substituting for attorney Derek S. Hammond (Molen, Kathleene) (Entered: 07/22/2020)
2020-07-27	18	Unopposed MOTION to Modify Briefing Schedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 07/27/2020)
2020-07-28		MINUTE ORDER (paperless) GRANTING the defendant's 18 Unopposed Motion to Modify Briefing Schedule, and MODIFYING the Scheduling Order in this case, see Min. Order (Apr. 30, 2020), as follows: (1) by August 17, 2020, the defendant shall file its motion for summary judgment and Vaughn index; (2) by September 7, 2020, the plaintiff shall file its combined opposition and cross-motion for summary judgment; (3) by September 28, 2020, the defendant shall file its combined opposition and reply; and (4) by October 19, 2020, the plaintiff shall file its reply. Signed by Chief Judge Beryl A. Howell on July 28, 2020. (lcbah3) (Entered: 07/28/2020)
2020-07-29		Set/Reset Deadlines: Defendant's motion for summary judgment and Vaughn Index due by 8/17/2020. Plaintiff's combined opposition and cross-motion for summary judgment due by 9/7/2020. Defendant's combined opposition and reply due by 9/28/2020. Plaintiff's reply due by 10/19/2020. (hmc) (Entered: 07/29/2020)
2020-08-17	19	MOTION for Summary Judgment by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Elizabeth White, # 4 Vaughn Index, # 5 Text of Proposed Order, # 6 Exhibit A, # 7 Exhibit B, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I, # 14 Exhibit J, # 15 Exhibit K, # 16 Exhibit L, # 17 Exhibit M, # 18 Exhibit N, # 19 Exhibit O, # 20 Exhibit P, # 21 Exhibit Q, # 22 Exhibit R, # 23 Exhibit S, # 24 Exhibit T)(Molen, Kathleene) (Entered: 08/17/2020)
2020-09-07	20	Cross MOTION for Summary Judgment by ECOLOGICAL RIGHTS FOUNDATION (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Statement of Facts, # 4 Declaration of Stuart Wilcox, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 4, # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11, # 16 Exhibit 12, # 17 Exhibit 13, # 18 Exhibit 14, # 19 Exhibit 15, # 20 Exhibit 16, # 21 Exhibit 17, # 22 Exhibit 18, # 23 Exhibit 19, # 24 Exhibit 20, # 25 Exhibit 21, # 26 Exhibit 22, # 27 Exhibit 23, # 28 Exhibit 24, # 29 Exhibit 25, # 30 Exhibit 26, # 31 Exhibit 27, # 32 Exhibit 28, # 33 Exhibit 29, # 34 Exhibit 30, # 35 Exhibit 31, # 36 Exhibit 32, # 37 Exhibit 33, # 38 Exhibit 34, # 39 Exhibit 35, # 40 Exhibit 36, # 41 Exhibit 37, # 42 Exhibit 38, # 43 Exhibit 39, # 44 Exhibit 40, # 45 Exhibit 41, # 46 Exhibit 42, # 47 Exhibit 43, # 48 Exhibit 44, # 49 Exhibit 45, # 50 Exhibit 46, # 51 Exhibit 47, # 52 Exhibit 48, # 53 Exhibit 49, # 54 Exhibit 50, # 55 Exhibit 51)(Wilcox, Stuart) (Entered: 09/07/2020)
2020-09-07	21	Memorandum in opposition to re 19 MOTION for Summary Judgment filed by ECOLOGICAL RIGHTS FOUNDATION. (Attachments: # 1 Statement of Facts Statement of Genuine Issues, # 2 Declaration of Stuart Wilcox, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46 Exhibit 44, # 47 Exhibit 45, # 48 Exhibit 46, # 49 Exhibit 47, # 50 Exhibit 48, # 51 Exhibit 49, # 52 Exhibit 50, # 53 Exhibit 51)(Wilcox, Stuart) (Entered: 09/07/2020)
2020-09-23	22	Unopposed MOTION to Modify Briefing Schedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 09/23/2020)
2020-09-23		MINUTE ORDER (paperless) GRANTING defendant's 22 Unopposed Motion to Modify Briefing Schedule and MODIFYING the Scheduling Order in this case, see Min. Order (July 28, 2020), as follows: (1) by October 5, 2020, the defendant shall file its combined opposition and reply; and (2) by October 26, 2020, the plaintiff shall file its reply. Signed by Chief Judge Beryl A. Howell on September 23, 2020. (lcbah3) (Entered: 09/23/2020)
2020-09-24		Set/Reset Deadlines: Defendant's combined opposition and reply due by 10/5/2020; plaintiff's reply due by 10/26/2020. (ztg) (Entered: 09/24/2020)
2020-10-05	23	REPLY to opposition to motion re 19 MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Statement of Facts, # 2 Declaration Claude Walker, # 3 Declaration Supplemental Elizabeth White, # 4 Text of Proposed Order)(Molen, Kathleene) (Entered: 10/05/2020)
2020-10-05	24	Memorandum in opposition to re 20 Cross MOTION for Summary Judgment filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Statement of Facts, # 2 Declaration Claude Walker, # 3 Declaration Supplemental Elizabeth White, # 4 Text of Proposed Order)(Molen, Kathleene) (Entered: 10/05/2020)
2020-10-26	25	REPLY to opposition to motion re 20 Cross MOTION for Summary Judgment filed by ECOLOGICAL RIGHTS FOUNDATION. (Attachments: # 1 Declaration Supplemental Declaration of Stuart Wilcox, # 2 Exhibit 52, # 3 Exhibit 53, # 4 Exhibit 54, # 5 Exhibit 55, # 6 Exhibit 56, # 7 Exhibit 57, # 8 Exhibit 58, # 9 Exhibit 59, # 10 Exhibit 60, # 11 Exhibit 61, # 12 Exhibit 62)(Wilcox, Stuart) (Attachment 3 replaced on 1/11/2021) (zeg). (Entered: 10/26/2020)
2020-12-14	26	NOTICE OF SUPPLEMENTAL AUTHORITY by ECOLOGICAL RIGHTS FOUNDATION (Attachments: # 1 Exhibit - supplemental authority)(Wilcox, Stuart) (Entered: 12/14/2020)
2020-12-21	27	RESPONSE re 26 NOTICE OF SUPPLEMENTAL AUTHORITY filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Molen, Kathleene) (Entered: 12/21/2020)
2021-01-19		MINUTE ORDER (paperless) DIRECTING plaintiff to submit, by January 22, 2021, clarification of the claims in its 7 Amended Complaint for which it seeks summary judgment since the Amended Complaint pleads only four claims for relief, see id. ¶¶ 55-70, but also states that "EcoRights hereby amends its 1 Complaint to add a sixth claim for relief," ¶ 7; and FURTHER DIRECTING, upon consideration of the parties' 19 20 cross-motions for summary judgment, the parties to submit (1) by January 22, 2021, supplemental briefing identifying where in their original briefing Counts I and IV of the Amended Complaint are discussed and whether, in light of the parties' failure to present any argument on these claims, those claims should be dismissed, and (2) by January 25, 2021, any responses to opposing parties' supplemental briefing. Signed by Chief Judge Beryl A. Howell on January 19, 2021. (lcbah3) (Entered: 01/19/2021)
2021-01-19		Set/Reset Deadlines: Plaintiff's response to Order of the Court due by 1/22/2021; parties' supplemental briefing due by 1/22/2021; response to opposing parties' supplemental briefing due by 1/25/2021. (ztg) (Entered: 01/19/2021)
2021-01-22	28	STIPULATION re 7 Amended Complaint TO VOLUNTARILY DISMISS WITHOUT PREJUDICE COUNTS I AND IV OF PLAINTIFF'S AMENDED COMPLAINT AND JOINT MOTION TO VACATE SUPPLEMENTAL BRIEFING DEADLINES by ECOLOGICAL RIGHTS FOUNDATION. (Wilcox, Stuart) (Entered: 01/22/2021)
2021-01-22		MINUTE ORDER (paperless) DISMISSING without prejudice Counts I and IV of plaintiff's 7 Amended Complaint, in light of the parties' 28 Stipulation to Voluntarily Dismiss Without Prejudice Counts I and IV of Plaintiff's Amended Complaint, GRANTING the parties' 28 Joint Motion to Vacate Supplemental Briefing Deadlines, and VACATING all deadlines for the filing of supplemental briefs, see Min. Order (Jan. 19, 2021). Signed by Chief Judge Beryl A. Howell on January 22, 2021. (lcbah3) (Entered: 01/22/2021)
2021-02-13	29	ORDER GRANTING IN PART AND DENYING IN PART the defendant's 19 Motion for Summary Judgment and GRANTING IN PART AND DENYING IN PART the plaintiff's 20 Cross-Motion for Summary Judgment. See Order for further details. Signed by Chief Judge Beryl A. Howell on February 13, 2021. (lcbah3) (Entered: 02/13/2021)
2021-02-13	30	MEMORANDUM OPINION regarding the defendant's 19 Motion for Summary Judgment and the plaintiff's 20 Cross-Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on February 13, 2021. (lcbah3) (Entered: 02/13/2021)
2021-03-12	31	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Molen, Kathleene) (Entered: 03/12/2021)
2021-03-12	32	MOTION to Alter Judgment or Amend by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Memorandum in Support, # 2 Declaration Claude Walker, # 3 Text of Proposed Order)(Molen, Kathleene) (Entered: 03/12/2021)
2021-03-15		MINUTE ORDER (paperless) DIRECTING, in light of the parties' 31 Joint Status Report, the parties to submit, by April 12, 2021, a joint status report indicating whether the government has decided to pursue an appeal of the 29 Order and 30 Memorandum Opinion issued in this case and proposing a schedule to govern further proceedings. Signed by Chief Judge Beryl A. Howell on March 15, 2021. (lcbah3) (Entered: 03/15/2021)
2021-03-15		Set/Reset Deadlines: Status Report due by 4/12/2021. (ztg) (Entered: 03/15/2021)
2021-03-26	33	RESPONSE re 32 MOTION to Alter Judgment or Amend filed by ECOLOGICAL RIGHTS FOUNDATION. (Wilcox, Stuart) (Entered: 03/26/2021)
2021-03-27	34	MOTION to Strike 32 MOTION to Alter Judgment or Amend and Supplemental Declaration of Claude Walker by ECOLOGICAL RIGHTS FOUNDATION. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Wilcox, Stuart) (Entered: 03/27/2021)
2021-03-30	35	MOTION to Modify Briefing Schedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 03/30/2021)
2021-03-30		MINUTE ORDER (paperless) GRANTING defendant's 35 Motion to Modify Briefing Schedule and DIRECTING defendant to file its combined opposition to plaintiff's 34 Motion to Strike and reply in support of its 32 Motion to Alter or Amend Judgment by April 12, 2021. Signed by Chief Judge Beryl A. Howell on March 30, 2021. (lcbah3) (Entered: 03/30/2021)
2021-03-31		Set/Reset Deadlines: Defendant's combined opposition to plaintiff's 34 Motion to Strike and reply in support of its 32 Motion to Alter or Amend Judgment due by 4/12/2021. (ztg) (Entered: 03/31/2021)
2021-04-12	36	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Molen, Kathleene) (Entered: 04/12/2021)
2021-04-12	37	Memorandum in opposition to re 34 MOTION to Strike 32 MOTION to Alter Judgment or Amend and Supplemental Declaration of Claude Walker filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 04/12/2021)
2021-04-12	38	REPLY to opposition to motion re 32 MOTION to Alter Judgment or Amend filed by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 04/12/2021)
2021-04-19	39	REPLY to opposition to motion re 34 MOTION to Strike 32 MOTION to Alter Judgment or Amend and Supplemental Declaration of Claude Walker filed by ECOLOGICAL RIGHTS FOUNDATION. (Wilcox, Stuart) (Entered: 04/19/2021)
2021-06-01	40	ORDER GRANTING the defendant's 32 Motion to Alter or Amend Judgment and DENYING the plaintiff's 34 Motion to Strike. See Order for further details. Signed by Chief Judge Beryl A. Howell on June 1, 2021. (lcbah3) (Entered: 06/01/2021)
2021-06-01	41	MEMORANDUM OPINION regarding the defendant's 32 Motion to Alter or Amend Judgment and the plaintiff's 34 Motion to Strike. Signed by Chief Judge Beryl A. Howell on June 1, 2021. (lcbah3) (Entered: 06/01/2021)
2021-06-02		MINUTE ORDER (paperless) DIRECTING, in light of the parties' 36 Joint Status Report, the parties to submit, by July 2, 2021, a joint status report advising the Court whether any disputes remain between the parties and, if so, a proposed schedule to govern further proceedings. Signed by Chief Judge Beryl A. Howell on June 2, 2021. (lcbah3) (Entered: 06/02/2021)
2021-06-02		Set/Reset Deadlines: Joint Status Report due by 7/2/2021. (ztg) (Entered: 06/02/2021)
2021-07-02	42	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 07/02/2021)
2021-07-06		MINUTE ORDER (paperless), upon consideration of the parties' 42 Joint Status Report, DIRECTING the parties to submit, by August 20, 2021, a joint status report advising the Court whether any disputes remain between the parties and, if so, proposing a schedule for briefing on plaintiff's anticipated motion for attorney's fees and costs and EXTENDING the deadline for plaintiff to file a motion for attorney's fees and costs until September 30, 2021. Signed by Chief Judge Beryl A. Howell on July 6, 2021. (lcbah3) (Entered: 07/06/2021)
2021-07-07		Set/Reset Deadlines: Joint Status Report due by 8/20/2021; motion for attorney's fees and costs due by 9/30/2021. (ztg) (Entered: 07/07/2021)
2021-08-20	43	Joint STATUS REPORT by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 08/20/2021)
2021-08-23		MINUTE ORDER (paperless) ISSUING, in light of the parties' 43 Joint Status Report, the following SCHEDULING ORDER to govern the timing of further proceedings in this matter: (1) by September 30, 2021, plaintiff shall submit its motion for attorney's fees and costs; (2) by October 29, 2021, defendant shall submit its opposition to plaintiff's motion; and (3) by November 23, 2021, plaintiff shall submit its reply in support of its motion. Signed by Chief Judge Beryl A. Howell on August 23, 2021. (lcbah3) (Entered: 08/23/2021)
2021-08-23		Set/Reset Deadlines: Motion for attorney's fees and costs due by 9/30/2021; opposition due by 10/29/2021; reply due by 11/23/2021. (ztg) (Entered: 08/23/2021)
2021-09-30	44	MOTION for Attorney Fees by ECOLOGICAL RIGHTS FOUNDATION. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Declaration of Stuart Wilcox, # 4 Exhibit 1 to Declaration of Stuart Wilcox, # 5 Exhibit 2 to Declaration of Stuart Wilcox, # 6 Exhibit 3to Declaration of Stuart Wilcox, # 7 Exhibit 4 to Declaration of Stuart Wilcox, # 8 Exhibit 5 to Declaration of Stuart Wilcox, # 9 Exhibit 6 to Declaration of Stuart Wilcox, # 10 Exhibit 7 to Declaration of Stuart Wilcox, # 11 Exhibit 8 to Declaration of Stuart Wilcox, # 12 Exhibit 9 to Declaration of Stuart Wilcox, # 13 Exhibit 10 to Declaration of Stuart Wilcox, # 14 Exhibit 11 to Declaration of Stuart Wilcox, # 15 Exhibit 12 to Declaration of Stuart Wilcox, # 16 Exhibit 13 to Declaration of Stuart Wilcox, # 17 Exhibit 14 to Declaration of Stuart Wilcox, # 18 Exhibit 15 to Declaration of Stuart Wilcox, # 19 Exhibit 16 to Declaration of Stuart Wilcox, # 20 Exhibit 17 to Declaration of Stuart Wilcox, # 21 Exhibit 18 to Declaration of Stuart Wilcox, # 22 Exhibit 19 to Declaration of Stuart Wilcox, # 23 Exhibit 20 to Declaration of Stuart Wilcox, # 24 Exhibit 21 to Declaration of Stuart Wilcox, # 25 Exhibit 22 to Declaration of Stuart Wilcox, # 26 Exhibit 23to Declaration of Stuart Wilcox, # 27 Exhibit 24 to Declaration of Stuart Wilcox, # 28 Exhibit 25 to Declaration of Stuart Wilcox, # 29 Exhibit 27 to Declaration of Stuart Wilcox, # 30 Exhibit 28 to Declaration of Stuart Wilcox, # 31 Exhibit 29 to Declaration of Stuart Wilcox, # 32 Exhibit 30 to Declaration of Stuart Wilcox, # 33 Exhibit 31 to Declaration of Stuart Wilcox, # 34 Exhibit 32 to Declaration of Stuart Wilcox, # 35 Exhibit 33 to Declaration of Stuart Wilcox, # 36 Declaration of Christopher Sproul, # 37 Exhibit 1 to Declaration of Christopher Sproul, # 38 Exhibit 2 to Declaration of Christopher Sproul, # 39 Exhibit 3 to Declaration of Christopher Sproul)(Wilcox, Stuart) (Attachment 7 replaced on 10/1/2021) (rj). (Attachment 8 replaced on 10/1/2021) (rj). Modified on 10/1/2021 to flatten pdf (rj). (Entered: 09/30/2021)
2021-10-25	45	Unopposed MOTION to Modify Briefing Schedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 10/25/2021)
2021-10-26		MINUTE ORDER (paperless) GRANTING defendant's 45 Unopposed Motion to Modify Briefing Schedule; and MODIFYING the SCHEDULING ORDER previously issued in this case, see Min. Order (Aug. 23, 2021), as follows: (1) by December 13, 2021, defendant shall submit its opposition to plaintiff's 44 Motion for Attorneys' Fees and Costs; and (2) by February 3, 2022, plaintiff shall submit its reply in support of its motion. Signed by Chief Judge Beryl A. Howell on October 26, 2021. (lcbah3) (Entered: 10/26/2021)
2021-10-27		Set/Reset Deadlines: Defendant's opposition to plaintiff's 44 Motion for Attorneys' Fees and Costs due by 12/13/2021; reply due by 2/3/2022. (ztg) (Entered: 10/27/2021)
2021-11-08	46	NOTICE OF SUBSTITUTION OF COUNSEL by Daniel Patrick Schaefer on behalf of UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Substituting for attorney Kathleene A. Molen (Schaefer, Daniel) (Entered: 11/08/2021)
2021-12-03	47	Consent MOTION for Extension of Time to File Response/Reply as to 44 MOTION for Attorney Fees by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 12/03/2021)
2021-12-06		MINUTE ORDER (paperless) GRANTING 47 Defendant's Consent Motion for Extension of Time, and MODIFYING the SCHEDULING ORDER previously entered in this matter, see Min. Order (Aug. 23, 2021), as follows, unless a stipulation of dismissal is filed before then: (1) by January 12, 2022, defendant shall submit its opposition to plaintiff's 44 Motion for Attorneys' Fees and Costs; and (2) by March 11, 2022, plaintiff shall submit its reply in support of its motion. Signed by Chief Judge Beryl A. Howell on December 6, 2021. (lcbah3) (Entered: 12/06/2021)
2021-12-06		Set/Reset Deadlines: Opposition to plaintiff's 44 Motion for Attorneys' Fees and Costs due by 1/12/2022; reply due by 3/11/2022. (ztg) (Entered: 12/06/2021)
2022-01-11	48	Joint MOTION to Vacate Briefing Schedule by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 01/11/2022)
2022-01-12		MINUTE ORDER (paperless) GRANTING IN PART and DENYING IN PART the parties 48 Joint Motion to Vacate Briefing Schedule; STAYING the briefing deadlines previously set concerning plaintiff's 44 Motion for Attorneys' Fees and Costs, see Min. Order (Aug. 23, 2021), until further order of the Court; and DIRECTING the parties to submit, by March 14, 2022, a joint status report advising the Court whether any disputes remain between the parties and, if so, proposing a schedule for further proceedings. Given that 44 plaintiff's motion remains pending, a stay of the briefing schedule is more appropriate than vacatur since, absent an ordered briefing schedule, the default deadlines for briefing set forth in LCvR 7(b) & 7(d) would apply, and such deadlines have lapsed. Signed by Chief Judge Beryl A. Howell on January 12, 2022. (lcbah3) (Entered: 01/12/2022)
2022-01-12		Set/Reset Deadlines: Joint Status Report due by 3/14/2022. (ztg) (Entered: 01/12/2022)
2022-02-12	49	STIPULATION of Dismissal by UNITED STATES ENVIRONMENTAL PROTECTION AGENCY. (Schaefer, Daniel) (Entered: 02/12/2022)
2022-02-15		MINUTE ORDER (paperless) DISMISSING this matter, with prejudice, upon consideration of the parties' joint 49 Stipulation of Dismissal. See Fed. R. Civ. P. 41(a)(1)(A)(ii). The Clerk of Court is directed to close this case. Signed by Chief Judge Beryl A. Howell on February 15, 2022. (lcbah3) (Entered: 02/15/2022)
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