IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

)

UNITED STATES OF AMERICA, )

)

Plaintiff, )

) Civil Action No. 5-05CV0293-C

v. ) (Judge Sam R. Cummings)

)

CHEVRON PIPE LINE COMPANY, )

)

Defendant. )

)

MOTION FOR LEAVE TO FILE UNITED STATES’ REPLY TO CHEVRON’S

OPPOSITION TO THE UNITED STATES’ MOTION FOR STAY OF PROCEEDINGS

PENDING SUPREME COURT DECISIONS IN RAPANOS AND CARABELL

AND REQUEST FOR EXPEDITED RULING 

The United States of America (“United States”), pursuant to the Requirements for

District Judge Sam R. Cummings, II. Motion Practice, Paragraph B., files this Motion for Leave

to File Reply Brief to Chevron’s Opposition to the United States’ Motion for Stay of

Proceedings Pending Supreme Court Decisions in Rapanos and Carabell and Request for

Expedited Ruling for the following reasons:

On March 9, 2006, the United States filed a Motion for Stay of Proceedings Pending

United States Supreme Court Ruling in Rapanos and Carabell, and an accompanying Brief in

Support of the Motion [Doc. No. 6] (“Motion for Stay”). 

On March 21, 2006, Chevron Pipe Line Company (“CPL”) filed Chevron’s Response in

Opposition to the United States’ Motion for Stay of Proceedings [Doc. No. 7] and Chevron’s

Brief in Opposition to the United States’ Motion for Stay of Proceedings [Doc. No. 8]. CPL’s

response in opposition raises issues and arguments that will not be addressed adequately without

the benefit of a reply.

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Motion for Leave to File Reply to Opposition to Motion for Stay U.S. v. Chevron Pipe Line Co. -2-

In Dondi Properties Corp. v. Commerce Sav. and Loan Ass’n, 121 F.R.D. 284 (N.D. Tex.

1988) (en banc), the District Court Judges of the Northern District of Texas said:

While our court has decided that the determination whether to

permit a reply is discretionary with each judge, the principle is

well-established that the party with the burden on a particular

matter will normally be permitted to open and close the briefing. 

See, e.g., Sup. Ct. R. 35(3); Fed. R. App. P. 28(c). It should thus

be rare that a party who opposes a motion will object to the

movant’s filing a reply.

121 F.R.D. at 291-92. 

 

In Dondi, although the movant failed to obtain the District Court’s permission to file a

reply, the Court did not strike the movant’s reply brief because the burden on the motion was on

the movant “who should thus be given the opportunity to open and close the argument.” Id. at

292.

In accordance with Dondi, I conferred with counsel for CPL regarding the United States

desire to file a reply and CPL indicated it does not oppose the United States filing a reply, but

stated it does oppose the United States’ request for expedited consideration of the Motion for

Stay.

The submission of a reply brief by the United States would assist this Court in resolving

the issue of whether to issue a stay of the litigation in this case. The interests of justice and

judicial economy will be served by allowing the United States the opportunity to reply to

contentions raised in CPL’s opposition, thereby insuring that the Court has a complete

understanding of the issues relating to a stay of this litigation.

The United States also respectfully requests that the Court expedite consideration of its

Motion for Stay. CPL has filed a Motion for Summary Judgment with accompanying Brief and

Appendix [Doc. Nos. 9 and 10] and the United States’ Opposition is due on April 10, 2006. 

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Therefore, the United States requests that this Court issue a decision on the Motion for Stay prior

to April 10, 2006, when the United States’ Opposition to CPL’s Motion for Summary Judgment

is due. Although the United States will oppose CPL’s summary judgment motion, if the Court

intends to grant the United States’ Motion for Stay, nothing would be gained by having the

parties brief summary judgment now.

For all of the foregoing reasons, the United States respectfully requests that this motion

be granted and that the Court consider the United States’ Reply to Chevron’s Opposition to the

United States’ Motion for Stay of Proceedings Pending Supreme Court Decisions in Rapanos

and Carabell, attached as Exhibit 1 to this motion.

Respectfully submitted,

SUE ELLEN WOOLDRIDGE

Assistant Attorney General

Environment and Natural Resources Division

 s/Scott Stewart 

SCOTT STEWART

DC Bar No. 453383

Trial Attorney

Environmental Enforcement Section

Environment and Natural Resources Division

United States Department of Justice

PO Box 7611

Washington, D.C. 20044-7611

Telephone: (202) 514-5508

Court Fax Number: (202) 353-7763

E-mail: scott.stewart@usdoj.gov

ATTORNEY FOR THE UNITED STATES

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Motion for Leave to File Reply to Opposition to Motion for Stay U.S. v. Chevron Pipe Line Co. -4-

RICHARD B. ROPER

United States Attorney

E. SCOTT FROST

Assistant United States Attorney

United States Attorney’s Office

Northern District of Texas

1205 Texas Avenue, Suite 700

Lubbock, Texas 79401

(806) 472-7351

Of Counsel

AMY SALINAS

Assistant Regional Counsel (6RC-S)

Environmental Protection Agency

Region 6

1445 Ross Avenue

Dallas, Texas 75202

(214 665-8063

Case 5:05-cv-00293-C Document 12 Filed 03/30/06 Page 4 of 6 PageID 155
CERTIFICATE OF CONFERENCE

Pursuant to Local Civil Rule LR 7.1(b), and in accordance with Dondi Properties Corp. v.

Commerce Sav. and Loan Ass’n, 121 F.R.D. 284 (N.D. Tex. 1988) (en banc), counsel for the

United States has conferred in good faith with Jerry Ross, counsel for Chevron Pipe Line

Company prior to filing this motion. 

I understand that Chevron Pipe Line Company does not oppose the United States’

Motion for Leave to File United States’ Reply to Chevron’s Opposition to the United States’

Motion for Stay of Proceedings Pending Supreme Court Decisions in Rapanos and Carabell,

however, Chevron Pipe Line Company opposes the United States’ Request for Expedited Ruling

on United States’ Motion for Stay for reasons given in Chevron’s Opposition to the United

States’ Motion for Stay of Proceedings.

 s/ Scott Stewart 

Scott Stewart

Trial Attorney

U.S. Department of Justice

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Motion for Leave to File Reply to Opposition to Motion for Stay U.S. v. Chevron Pipe Line Co. -6-

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of March, 2006, I electronically filed the foregoing

Motion for Leave to File United States’ Reply to Chevron’s Opposition to the United States’

Motion for Stay of Proceedings Pending Supreme Court Decisions in Rapanos and Carabell and

Request for Expedited Ruling with the clerk of court for the U.S. District Court, Northern

District of Texas, using the electronic case filing system of the court. The electronic case filing

system will send a “Notice of Electronic Filing,” constituting proper service, to the following

attorneys of record who have consented in writing to accept this Notice as service of this

document by electronic means: 

Jerry W. Ross

Richard Hogan

PILLSBURY WINTHROP SHAW PITTMAN LLP

909 Fannin Street, Suite 2200

Houston, Texas 77010

 s/ Scott Stewart 

Scott Stewart

Trial Attorney

U.S. Department of Justice

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