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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1 2 3 4 5 6 7 8 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 11 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 12 Attorney for Plaintiff Kern County Water Agency 9 10 13 UNITED STATES DISTRICT COURT 14 EASTERN DISTRICT OF CALIFORNIA 15 16 17 COALITION FOR A SUSTAINABLE DELTA and KERN COUNTY WATER AGENCY Plaintiffs, 18 19 20 21 22 23 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. 24 25 WHEREAS, the Coalition For A Sustainable Delta and the Kern County Water Agency 26 (“Plaintiffs”) filed a Complaint for Declaratory and Injunctive Relief in Case No. 1:09-CV-00480 on 27 March 12, 2009; 28 STIPULATION OF PARTIAL DISMISSAL 09cr2023.Stipulation.docx 1 1 WHEREAS, Plaintiffs filed a First Amended Complaint for Declaratory and Injunctive Relief 2 (Dkt. #23) as a matter of right pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure on May 3 28, 2009; 4 5 6 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 7 Amended Complaint allege that the Department of Transportation Maritime Administration (MARAD) 8 violated section 7 of the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., by, among other things, 9 failing to consult with the U.S. Fish and Wildlife Service (Service) regarding the effects of the Removal 10 of Non-Retention Vessels from National Defense Reserve Fleet Sites for Disposal Project located at the 11 Suisun Bay Reserve Fleet Facility on the threatened delta smelt and its designated critical habitat; 12 13 14 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 15 stayed and continued following MARAD’s completion of its environmental analysis of fleet operations 16 and vessel disposal activities under the National Environmental Policy Act; 17 WHEREAS, MARAD issued the Final Programmatic Environmental Assessment and Finding of 18 No Significant Impact for Removal and Disposal of Non-Retention Vessels from the National Defense 19 Reserve Fleet on August 31, 2009; 20 WHEREAS, on January 19, 2010 and May 13, 2010, MARAD submitted a request to NMFS to 21 concur with MARAD’s determination that the Removal of Non-Retention Vessels from National 22 Defense Reserve Fleet Sites for Disposal Project located at the Suisun Bay Reserve Fleet Facility may 23 affect but is not likely to adversely affect the threatened delta smelt and its critical habitat; pursuant to 24 Section 7(a)(2) of the ESA; 25 WHEREAS, on June 1, 2011, NMFS concurred with MARAD’s determination that listed species 26 and designated critical habitat are not likely to be adversely affected by MARAD’s proposed removal of 27 non-retention vessels from the Suisun Bay Reserve Fleet Facility; 28 STIPULATION OF PARTIAL DISMISSAL 09cr2023.Stipulation.docx 2 1 WHEREAS, on January 19, 2010, and June 2010, MARAD submitted a request to the Service to 2 concur with MARAD’s determination that the Removal of Non-Retention Vessels from National 3 Defense Reserve Fleet Sites for Disposal Project located at the Suisun Bay Reserve Fleet Facility may 4 affect but is not likely to adversely affect the threatened delta smelt and its critical habitat; 5 WHEREAS, on June 20, 2011, pursuant to section 7(a)(2) of the ESA, the Service concurred that 6 the proposed action is not likely to adversely affect the delta smelt or adversely modify its critical 7 habitat; 8 9 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 10 Complaint (Dkt. #75). Dismissal is without prejudice, with each party to bear its own costs, expenses, 11 and attorneys’ fees as to the dismissed claims. All other claims in the Second Amended Complaint are 12 unaffected by this stipulation. 13 Respectfully submitted this 25th day of October, 2011 NOSSAMAN LLP KERN COUNTY WATER AGENCY AMELIA T. MINABERRIGARAI 14 15 16 17 18 19 20 /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 21 22 23 24 25 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. 26 Dated: /s/ Lawrence J. O’Neill October 27, 2011 27 UNITED STATES DISTRICT JUDGE DEAC_Signature-END: 28 b9ed48bb STIPULATION OF PARTIAL DISMISSAL 09cr2023.Stipulation.docx 3

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