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2019-04-09_REVISION - M1977306
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2019-04-09_REVISION - M1977306
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Last modified
12/27/2024 1:06:09 PM
Creation date
4/10/2019 12:30:12 PM
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Template:
DRMS Permit Index
Permit No
M1977306
IBM Index Class Name
Revision
Doc Date
4/9/2019
Doc Name
Notice Of Status Change
From
Operator
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DRMS
Email Name
DMC
THM
GRM
Media Type
D
Archive
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Case 1:08-cv-01624-WJM-NRN Document 166 Filed 03/18/19 USDC Colorado Page 9 of 12 <br /> FWS to Supplemental BA." (Id. at 3.) The Court adopted the proposed briefing <br /> schedule, with the first deadline (i.e., filing of the motion to dissolve) set for 30 days <br /> after DOE received a final response from FWS regarding the supplemental BA. (ECF <br /> No. 157.) <br /> This course of events reveals three things. First, the Court charged DOE with a <br /> limited, discrete task—in contrast to a reopening of the entire process that the Court <br /> ordered in CEC 1. Second, the Court expressed its expectation of an updated or <br /> supplemental ROD,' but the Court said nothing about a new or supplemental <br /> administrative record—in contrast to proceedings before the original motion to dissolve <br /> (ECF No. 147), where the Court specifically required a new administrative record (see <br /> ECF No. 132). Third, the Court asked the parties to describe "what steps remain, if any, <br /> before [DOE] may file a motion to dissolve the injunction" (ECF No. 155), and Plaintiffs <br /> did not at that time raise the need to produce a new or supplemental administrative <br /> record. <br /> Accordingly, because the Court did not require a new administrative record, DOE <br /> did not err in failing to produce one. Also, the situation is equivalent to "invited error" <br /> because Plaintiffs had their opportunity to insist on an administrative record as part of <br /> the scheduling order but did not. See, e.g., United States v. Edward J., 224 F.3d 1216, <br /> 1222 (10th Cir. 2000). <br /> Finally, assembling an administrative record would take more time and likely <br /> more briefing. The Court finds that it would not be in the interest of justice to delay <br /> ' No party has pointed the Court to an updated or supplemental ROD, unless the <br /> supplemental BA (ECF No. 160-1) is deemed to be the same thing. But Plaintiffs do not object <br /> on this account, so the Court will not explore the matter further. <br /> 9 <br />
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