Coalition for a Sustainable Delta et al v. United States Fish and Wildlife Service et al
Filing
106
STIPULATION OF PARTIAL DISMISSAL signed by District Judge Lawrence J. O'Neill on October 27, 2011. (Munoz, I)
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NOSSAMAN LLP
ROBERT D. THORNTON (SBN 72934)
rthornton@nossaman.com
PAUL S. WEILAND (SBN 237058)
pweiland@nossaman.com
AUDREY M. HUANG (SBN 217622)
ahuang@nossaman.com
18101 Von Karman Avenue, Suite 1800
Irvine, CA 92612
Telephone: (949) 833-7800
Facsimile: (949) 833-7878
Attorneys for Plaintiffs
Coalition for a Sustainable Delta and Kern County
Water Agency
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KERN COUNTY WATER AGENCY
AMELIA T. MINABERRIGARAI (SBN 192359)
P.O. Box 58
Bakersfield, CA 93302-0058
Telephone: (661) 634-1400
Facsimile: (661) 634-1428
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Attorney for Plaintiff Kern County Water Agency
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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COALITION FOR A SUSTAINABLE DELTA
and KERN COUNTY WATER AGENCY
Plaintiffs,
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Case No: 1:09-CV-02023-LJO-BAM
STIPULATION OF PARTIAL DISMISSAL
vs.
UNITED STATES DEPARTMENT OF
TRANSPORTATION, RAY LaHOOD, in his
official capacity as Secretary of Transportation,
MARITIME ADMINISTRATION, and JAMES
E. CAPONITI, in his official capacity as Acting
Deputy Maritime Administrator,
Defendants.
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WHEREAS, the Coalition For A Sustainable Delta and the Kern County Water Agency
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(“Plaintiffs”) filed a Complaint for Declaratory and Injunctive Relief in Case No. 1:09-CV-00480 on
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March 12, 2009;
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STIPULATION OF PARTIAL DISMISSAL
09cr2023.Stipulation.docx
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WHEREAS, Plaintiffs filed a First Amended Complaint for Declaratory and Injunctive Relief
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(Dkt. #23) as a matter of right pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure on May
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28, 2009;
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WHEREAS, Plaintiffs filed a Second Amended Complaint for Declaratory and Injunctive Relief
(Second Amended Complaint) (Dkt. #75) on July 23, 2009;
WHEREAS, the Eighth, Ninth, and Tenth Claims for Relief contained in Plaintiffs’ Second
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Amended Complaint allege that the Department of Transportation Maritime Administration (MARAD)
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violated section 7 of the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., by, among other things,
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failing to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of the Removal
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of Non-Retention Vessels from National Defense Reserve Fleet Sites for Disposal Project located at the
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Suisun Bay Reserve Fleet Facility on the threatened delta smelt and its designated critical habitat;
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WHEREAS, MARAD entered into consultation with the National Marine Fisheries Service
(NMFS) in August of 2007;
WHEREAS, it was agreed between the NMFS and MARAD that the consultation would be
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stayed and continued following MARAD’s completion of its environmental analysis of fleet operations
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and vessel disposal activities under the National Environmental Policy Act;
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WHEREAS, MARAD issued the Final Programmatic Environmental Assessment and Finding of
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No Significant Impact for Removal and Disposal of Non-Retention Vessels from the National Defense
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Reserve Fleet on August 31, 2009;
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WHEREAS, on January 19, 2010 and May 13, 2010, MARAD submitted a request to NMFS to
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concur with MARAD’s determination that the Removal of Non-Retention Vessels from National
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Defense Reserve Fleet Sites for Disposal Project located at the Suisun Bay Reserve Fleet Facility may
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affect but is not likely to adversely affect the threatened delta smelt and its critical habitat; pursuant to
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Section 7(a)(2) of the ESA;
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WHEREAS, on June 1, 2011, NMFS concurred with MARAD’s determination that listed species
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and designated critical habitat are not likely to be adversely affected by MARAD’s proposed removal of
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non-retention vessels from the Suisun Bay Reserve Fleet Facility;
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STIPULATION OF PARTIAL DISMISSAL
09cr2023.Stipulation.docx
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WHEREAS, on January 19, 2010, and June 2010, MARAD submitted a request to the Service to
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concur with MARAD’s determination that the Removal of Non-Retention Vessels from National
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Defense Reserve Fleet Sites for Disposal Project located at the Suisun Bay Reserve Fleet Facility may
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affect but is not likely to adversely affect the threatened delta smelt and its critical habitat;
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WHEREAS, on June 20, 2011, pursuant to section 7(a)(2) of the ESA, the Service concurred that
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the proposed action is not likely to adversely affect the delta smelt or adversely modify its critical
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habitat;
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NOW, THEREFORE, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the parties hereby stipulate to
the dismissal of the Eighth, Ninth, and Tenth Claims for Relief contained in Plaintiffs’ Second Amended
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Complaint (Dkt. #75). Dismissal is without prejudice, with each party to bear its own costs, expenses,
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and attorneys’ fees as to the dismissed claims. All other claims in the Second Amended Complaint are
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unaffected by this stipulation.
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Respectfully submitted this 25th day of October, 2011
NOSSAMAN LLP
KERN COUNTY WATER AGENCY
AMELIA T. MINABERRIGARAI
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/S/ Paul S. Weiland (with permission by
By: _ Kevin W. McArdle)________________
Robert D. Thornton
Paul S. Weiland
Audrey M. Huang
Attorneys for Plaintiffs Coalition for a Sustainable
Delta and Kern County Water Agency
/S/ Amelia T. Minaberrigarai (with
By:
permission by Kevin W. McArdle)_
Attorney for Plaintiff Kern County Water
Agency
IGNACIA S. MORENO, ASSISTANT
ATTORNEY GENERAL
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By: _/S/ Kevin W. McArdle__
KEVIN W. MCARDLE, Trial Attorney
United State Department of Justice,
Environmental & Natural Resources Division
Attorneys for FEDERAL DEFENDANTS
IT IS SO ORDERED.
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Dated:
/s/ Lawrence J. O’Neill
October 27, 2011
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UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:
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b9ed48bb
STIPULATION OF PARTIAL DISMISSAL
09cr2023.Stipulation.docx
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