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5 Plaintiffs, ) 17-3000L

6 vs. )


8 Defendant. )

10 Courtroom 11-B, United States District Court

11 for the Southern District of Texas

12 Bob Casey Federal Courthouse

13 515 Rusk Street, Houston, Texas

14 Wednesday, December 20, 2017

15 10:00 a.m.

16 Hearing









25 Evelyn Carter, Digital Court Reporter


1 MS. BROWN: Jacqueline Brown, trial attorney.

2 MR. HARRINGTON: David Harrington, I’m the

3 Assistant Chief in the Natural Resources Section.

4 MR. HOOPER: Robert Hooper, Your Honor, agency

5 counsel for the Corps of Engineers.

6 MR. PURCELL: James Purcell, Your Honor, Corps

7 of Engineers.

8 MS. RUSSELL: Good morning, Your Honor, Lisa

9 Russell from the Environmental and Natural Resources

10 Division, Chief of the Natural Resources Section.

11 MS. DUNCAN: And Laura Duncan, trial attorney,

12 Natural Resources Section.

13 THE COURT: Thank you.

14 I had hoped this was going to be more

15 productive than it probably will be. I talked to Judge

16 Lettow last night and this morning and what we are going

17 to do is listen to what you have to say and then the two

18 of us are going to put our heads together and see what we

19 want to do.

20 The gist of what I read in the Government’s

21 filing last night was either this case is going to be

22 litigated in a time period that was satisfactory to the

23 Government or “your way or the highway.” It didn’t go

24 unnoticed that there was a veiled threat to mandamus the

25 Court if we didn’t do a schedule that would be to the


1 Justice Department’s liking.

2 The Trial Court’s ability to manage cases has

3 long been left within the jurisdiction of the Court, but

4 I suppose I would welcome -- let’s bring it on from the

5 beginning. The President of the United States sent his

6 wife and Mrs. Pence here two weeks ago to visit the

7 victims. Now, I have worked with Attorney General

8 Sessions for 30 years, much longer than you have, and I

9 know how strongly he feels about individuals having

10 access to the courts and to justice in a timely fashion.

11 What has been proposed to the Court, frankly,

12 is insulting. It’s insulting to the people in this

13 community; it’s insulting to the President of the United

14 States; and it is unbefitting to those representing the

15 Attorney General. And it shows no respect for the role

16 of the Court.

17 The Federal Rules of Civil Procedure, after

18 which our rules have been adopted require just, speedy

19 and inexpensive management solutions. The Justice

20 Department, however, has a different standard they have

21 informed me in their pleadings. Their standard is fair,

22 effective and efficient. For whom?

23 The Court’s been informed the Army Corps of

24 Engineers will need a year to look for documents. It

25 took the Army Corps of Engineers a few minutes to make a


1 decision to open dams that left people without homes and

2 without property.

3 This case is a Constitutional case, which means

4 it’s one of the most important and last resorts for

5 people to look to for a remedy against grievances from

6 the Government. Yet, the Government has treated this as

7 if it’s a commercial case of some sort without any regard

8 for the requirements of just, speedy and inexpensive

9 discovery. The Court set this conference to come down

10 and listen to reasonable proposals. I do not regard, nor

11 does Judge Lettow regard, the proposal that the Justice

12 Department has provided to be that.

13 I have one final thing to say before I turn to

14 the Plaintiffs. When the Government filed a motion to

15 vacate, they complained that they had not -- that the

16 Court had violated Rule 16(b) because the parties have

17 consulted with each other. They made that representation

18 although they initiated a telephone conference to do just

19 that. That’s not advocacy; that’s a lie.

20 Apparently, the Justice Department views that

21 any time the Court issues an order, their job basically

22 is to go on and to challenge each and every aspect of it,

23 whether -- and basically say things that simply are not

24 true. They have asked the Court to take aside six months

25 to have discovery on certification for which they say in


1 their own proposed schedule that they intend to oppose.

2 What am I to make of this? It’s beyond embarrassing.

3 If you don’t mind, let me turn -- since Judge

4 Lettow, as you know -- I think somebody was before him

5 recently. He was in Seattle the last two days and just

6 got back to D.C. So I am here. So I will listen to what

7 you have to say, if anything, and then I’ll turn to the

8 downstream Plaintiffs.

9 MR. EASTERBY: Shall we approach the lectern,

10 Your Honor?

11 THE COURT: You can do whatever you want to do.

12 I don’t really care. Whatever is comfortable for you.

13 MR. EASTERBY: Your Honor, Armistead Easterby,

14 co-lead counsel, upstream, for the substantive portion.

15 Your Honor, I would just echo what the Court has said.

16 You asked us for reasonable recommendations, and what the

17 DOJ supplied was not that. We are simply here today to

18 try and keep the existing schedule and we are more than

19 welcome to sit down with the DOJ to explore reasonable

20 alternatives to the existing schedule. We could start

21 discovery earlier, for example. But until and unless --

22 THE COURT: It occurred to me I don’t know what

23 you all have been doing for the last couple months. When

24 I was here the first time, I was told that the Plaintiffs

25 have already done a lot of discovery. I assumed the