Council for Endangered Species Act Reliability v. Salazar et al
Filing
19
STIPULATION and ORDER to DISMISS Claims and Set Schedule for Resolving Attorney's Fees and Costs, signed by Judge Oliver W. Wanger on 4/21/10. (Hellings, J)
ALAN N. BICK, SBN 151452, ABick@gibsondunn.com THOMAS A. MANAKIDES, SBN 229119, TManakides@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 3161 Michelson Drive Irvine, California 92612-4412 Tel: (949) 451-3800 Fax: (949) 451-4220 Attorneys for Plaintiff COUNCIL FOR ENDANGERED SPECIES ACT RELIABILITY LAWRENCE G. BROWN, United States Attorney SYLVIA QUAST, Assistant U.S. Attorney United States Attorney, Eastern District of California U.S. Courthouse 501 I Street, Suite 10-100 Sacramento, CA 95814-2322 Tel: (916) 554-2700 Fax: (916) 554-2900 IGNACIA S. MORENO, Assistant Attorney General JEAN E. WILLIAMS, Section Chief DANIEL J. POLLAK, Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Tel: (202) 305-0201 Fax: (202) 305-0275 Attorneys for Federal Defendants IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA COUNCIL FOR ENDANGERED SPECIES ACT RELIABILITY, Plaintiff, v. ) ) ) ) ) ) )
Case No. 1:09-CV-02091-OWW-DLB Stipulation and Order to Dismiss Claims and Set Schedule for Resolving Attorney's Fees and Costs
) ) KEN SALAZAR, as Secretary of the United ) States Department of the Interior; UNITED ) STATES DEPARTMENT OF THE INTERIOR; ) UNITED STATES FISH AND WILDLIFE ) SERVICE; SAM HAMILTON, as Director of ) The United States Fish and Wildlife Service, )
United States Department of the Interior, REN LOHOEFENER, as Regional Director of the United States Fish and Wildlife Service, Pacific Southwest Region, United States Department of the Interior, Defendants.
) ) ) ) ) ) ) )
WHEREAS, the U.S. Fish and Wildlife Service ("Service") listed the delta smelt as a threatened species on March 5, 1993. See 73 Fed. Reg. 39,639, 39,640 (July 10, 2008). WHEREAS, on March 9, 2006, the Service received a petition, dated March 8, 2006, from the Center for Biological Diversity, the Bay Institute, and the Natural Resources Defense Council to reclassify the listing status of the delta smelt from threatened to endangered status. Id. WHEREAS, On July 10, 2008, the Service published the 90-day finding in the Federal Register, as required by 16 U.S.C. § 1533(b)(3)(A), which concluded that the petition presented "substantial information to indicate . . . that reclassification of delta smelt from threatened to endangered may be warranted" and that the Service would accordingly initiate a status review of the species. Id. at 39,643. WHEREAS, on October 15, 2009, Council for Endangered Species Act Reliability ("CESAR") filed its Complaint in the above-captioned case under the Endangered Species Act citizen suit provisions at 16 U.S.C. §1540(g)(1)(C). CESAR's Complaint alleged that the Service missed its mandatory deadline to issue, within 12-months, a finding as to whether the petitionedfor reclassification of the delta smelt was warranted, not warranted, or warranted but precluded by other listing priorities, pursuant to 16 U.S.C. §1533(b)(3)(B). WHEREAS, CESAR's lawsuit in this action sought declaratory relief and an injunction compelling issuance of the 12-month finding, as well as reasonable costs of litigation including attorney's fees. WHEREAS, on April 7, 2010, the Service issued a 12-month finding regarding the petition to reclassify the delta smelt at 75 Fed. Reg. 17,667 (the "12-month Delta Smelt Finding").
Stipulation and Order to Dismiss
2
Case No. 1:09-CV-02092-OWW-DLB
WHEREAS, on April 12, 2010, this Court issued an Order to Show Cause re Dismissal ordering the parties to show cause as to why the case should not be dismissed as moot in light of the Service's issuance of the 12-month Delta Smelt Finding. NOW THEREFORE, IT IS HEREBY STIPULATED, and agreed to by and between CESAR and Ken Salazar, the U.S. Department of the Interior, the Service, Sam Hamilton, and Ren Lohoefenor ("Defendants") that publication of the 12-month Delta Smelt Finding renders CESAR's claims for injunctive and declaratory relief in this action moot. The parties respectfully request an order from this Court dismissing such claims with prejudice. However, the parties agree that this dismissal is without prejudice to CESAR raising additional claims under the Endangered Species Act or other applicable law not covered by the Complaint relating to the delta smelt, including challenging the merits of the 12-month Delta Smelt Finding. The parties further stipulate and agree that this dismissal on the basis of mootness is without prejudice to CESAR seeking and this Court awarding CESAR attorney's fees and costs incurred in this action. If such fees are sought, this dismissal is without prejudice to Defendants raising any and all defenses to such an award including jurisdictional, entitlement, or the reasonableness of any amount. The parties respectfully request an order setting the following schedule for addressing attorney's fees and costs: (1) Within 30 days of the entry of the order by this Court approving this Stipulation, CESAR will provide to Defendants an itemization of the reasonable attorney's fees and costs it seeks to recover in this action to allow Defendants to assess whether settlement of any fee claim is possible. (2) Within 60 days of Defendants receiving this itemization of CESAR's proposed fees and costs, the parties will notify the Court of whether they have reached a settlement as to the payment of CESAR's attorney's fees and costs by Defendants. (3) If the parties have not reached agreement on attorney's fees and costs at the time they provide this notice to the Court, CESAR may move within 30 days of that date for the Court to award attorney's fees and costs. Briefing and adjudication of CESAR's motion for fees and costs
and Defendant's opposition will then proceed as provided in L.R. 230. In the event CESAR files such a motion, Defendants reserve any and all defenses to such an award including jurisdictional, entitlement, or the reasonableness of any amount. Dated: April 21, 2010 Respectfully submitted, IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division JEAN E. WILLIAMS, Section Chief
/s/ Daniel Pollak Trial Attorney U.S. Department of Justice Wildlife & Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, D.C. 20044-7369 Telephone: (202) 305-0201 Fax: (202) 305-0275 Attorneys For Defendants /s/ Alan Bick (as authorized on April 21, 2010) Gibson, Dunn & Crutcher LLP
3161 Michelson Drive Irvine, California 92612-4412 Telephone: (949) 451-3800 Facsimile: (949) 451-4220 Attorneys for Plaintiff
IT IS SO ORDERED. Dated:
April 21, 2010
DEAC_Signature-END:
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE emm0d64h
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